Securing the Sasana through Law: Buddhist Constitutionalism and Buddhist-Interest Litigation in Sri Lanka, Benjamin Schonthal
In contrast to the strict Singaporean policy of separating church and state, Benjamin Schonthal in the following article discusses a polity - Sri Lanka - with an explicit constitutional preference for one religion, Buddhism, over all others.
As Schonthal explains, “Sri Lanka's constitution appears to give the state legal responsibility for the well-being of Buddhism.” The “establishment” of one faith as the nation's official religion is by no means unique to Sri Lanka and can be found in differing forms in many countries of Asia and the rest of the world. The result is not necessarily a lack of freedom for other forms of worship, since their rights may also be safeguarded by law; but state support for one officially favored religion can lead to some perplexing constitutional challenges about “what Buddhism is, who should speak for it, and how it ought to be protected.” Schonthal describes lawsuits brought by Buddhist leaders to limit commercial appropriation of religious symbols and to oppose proselytization by Catholic organizations that might draw Buddhist worshipÂpers to Christianity. Such litigation places the Sri Lanka Supreme Court in the position of defining what it views as the legitimate nature and role of Buddhism in the nation's public life through its very effort to protect Buddhism's well-being. Schonthal asks why such litigation has been more prevalent in Sri Lanka than in other Buddhist countries, such as Thailand, Myanmar, and Cambodia; and he speculates that the future may bring further efforts to “legalize” questions of religious legitimacy and protection in Sri Lanka and elsewhere. Such efforts would, of course, have significant implicaÂtions for factionalism in Asian nations, as religious issues have become increasÂingly politicized across the entire region.Sri Lanka's supreme law includes special prerogatives for Buddhism as well as general religious rights.
It awards to Buddhism the �foremost place' and obligates the state to �protect and foster' the Buddha's legacy in the world, the Sasana, while also assuring rights to freedom of religious belief and practice. [...] Although Sri Lanka's constitution appears to give the state legal responsibility for the well-being of Buddhism, equally important are the ways in which it empowers citizens to make broad and diverse constitutional claims in the name of Buddhism. Buddhist constitutionalism in Sri Lanka has enabled a climate of Buddhist-interest litigation, public legal battles over what Buddhism is, who should speak for it, and how it ought to be protected.Buddhist Constitutionalism and the Work of Constitutional Law
As a type of constitutional law that privileges a country's most populous religion, Buddhist constitutionalism looks very similar to the constitutional traditions of many other countries. For example, Egypt, Tunisia, Malaysia, Israel, and Denmark all have basic laws that combine special prerogatives for the majority religion with rights and (sometimes) recognition for other reliÂgions. These types of constitutions are by no means marginal. By some estimates, approximately 40 per cent of all constitutions explicitly favour a particular religion while also guaranteeing general religious rights and as much as half of the world's population live under constitutional arrangements of this sort. [...]
Constitutional protections for Buddhism have not contained the spread of Buddhist claims on political life nor have they simply authorized the state to act in the best interests of Buddhism. The Buddhism Chapter's more proÂfound effects lie in the way in which it has enabled and incentivized Sri Lanka's citizens - or, at least, those with adequate resources and time - to translate specific disagreements and political concerns into formal contests over the nature of Buddhism and the state's obligations to protect it. Constitutional protections for Buddhism have activated a culture of Buddhist-interest litigation, one that has increased the number and the visibilÂity of grievances about Buddhism, while also making those grievances matters of national concern.
Constitutional protections for Buddhism have, counterÂintuitively, amplified and multiplied - rather than allayed - public concerns and frustration over the well-being and status of Buddhism. [...]In 2004 the Supreme Court heard the fundamental rights petition of Ven. Daranagama Kusaladhamma Thero, the head monk of a large Colombo temple. The petition requested that the court issue an order to the inspector general of police to arrest anyone involved in selling â€?merchandised Buddha images which defiles and defame[s] Lord Buddha'. The merchandise in question included swimwear manufactured by Victoria's Secret containing â€?the image of the Buddha displayed on the breasts and crotch areas', a pair of slippers with Buddha images on them, a candle made in the likeness of the Buddha, and a set of â€?Buddha Bar' compact discs (on sale in a Colombo music store). In his petition the monk stated that the products would cause Buddhists to be â€?emotionally hurt, annoyed and therefore offended', to be â€?gravely provoked', and to be made â€?emotionally turbulent.' This would, among other things, contravene Buddhism Chapter obligations to protect and foster the Buddha Sasana.
In his submissions, the monk publicly affirmed a categorical opposition between Western capitalistic imperatives and local Buddhist sensibilities:
[I]f the Buddha's image is continuously used publicly on bikinis, on slippers, as candles and on music compact discs etc. it would loose [sic] the impact as an image of honour and pilgrimage. Further it would be perceived as a brand like �Coca Cola', cream soda etc.... Naturally the children teenagers and youth of such religion who are exposed to religious images in such casual and merchandised manner would loose [sic] faith and sincere respect in the philosophy stated by such religious leaders.
The petition accused global manufacturers of transforming the Buddha into a symbol for branding and marketing products. Ven. Kusaladhamma saw this as a significant threat to Buddhism.
By using religious imagery as a marketing device, manufacturers (and those who sold their products) contributed to the â€?decline in worshiping or observing practices on such religious image or symbol... [and] this would not only affect the individual per se, it would affect his or her religion in observing and worshiping in the long run'. According to Ven. Kusaladhamma's submissions, reproducing the Buddha's image on common items not only cheapened and degraded the image of the Buddha, it led to the discrediting of Buddhism and therefore to a decline in membership and observance.The submissions made by Ven. Kusaladhamma invoked the constitutional mandate to protect Buddhism in order to prevent a particular profaning effect of neoliberal commercialism: that of using Buddhist iconography for the selling of commercial products. This, he insisted, was an improper (and unconstitutional) mixing of religion and economics. Similar impulses appear in a second set of court cases. In these cases, litigants invoked constitutional protections to thwart a different kind of mixing between religion and economÂics. In three cases that were heard by the Supreme Court between 2000 and 2003, petitioners opposed the mixing of economic incentives and religious motives by Christian organizations, arguing that they constituted a threat to Buddhism. Here, however, it was not the commercial degrading of Buddhism that was at issue, but the â€?unethical' use of wealth (notably, wealth deriving from foreign sources) to promote conversion to Christianity.
The cases related to attempts by three separate Christian organizations to gain legal incorporation through acts of parliament. (At the time, this was a common procedure for legal recognition of religious groups in Sri Lanka.) In each case, a petitioner, who was affiliated with a Buddhist organization, challenged the proposed incorporation bill, claiming, among other things, that by recognizing the particular Christian group, the government would be contravening its constitutional duties to Buddhism.
In 200r, a petitioner challenged the incorporation of an evangelical â€?prayer centre' that conducted regular services, faith healing, and charity work. In 2003, two separate petiÂtioners challenged the incorporation of two other groups: one was an indeÂpendent evangelical ministry whose stated aims included holding â€?deliverance meetings', building places of worship, organizing workshops, undertaking social services, and holding religious services; the other was an order of Catholic nuns who ran schools, assisted in medical centres, and undertook other social service activities. [...]According to the petition, neither the religious activities nor the â€?material assistance' specified in the proposed bill alone violated the terms of the constitution. The problem was the mingling of the two. By mixing material and religious imperatives, the petitioners insisted, Christian groups would be able to leverage one against the other, using promises of better jobs, improved health or increased wealth - promises that were underwritten by the perceived wealth and resources of related, international Christian organizations - to draw Buddhists to Christianity. The result was â€?unethical' proselytizing.
As with the above cases, litigants associated the profaned (use of ) religion with distinct foreign threats. Petitioners pointed out that Christian groups represented not only an alternative faith (to Buddhism), but a different �culture' and geography as well. The conversion of Buddhists to Christianity, in this view, threatened Sri Lanka's demographic, cultural, and religious uniqueness, and exposed vulnerable local people to powerful �international' forces.
In 2003, the Supreme Court itself affirmed some of these claims, albeit in terse and evasive language. In the second incorporation case (relating to the incorporation of an evangelical ministry), a Supreme Court majority opinion insisted, without further explanation, that because the ministry seemed to mix economic and religious goals in its charter, its incorporation would be â€?inconÂsistent with the Buddhism Chapter'.
In the third case (relating to the incorporÂation of an order of Catholic nuns), the Supreme Court argued further that not only was such mixing â€?inconsistent' with the Buddhism Chapter, a Christian organization of that type might â€?impair the very existence of Buddhism or the Buddha Sasana'. No further explanation was given in this case either. [...]Expanding and Consolidating Conclusions
Invoking the Buddhism Chapter in the courts provided a powerful mechanÂism for expanding the visibility and political importance of protecting Buddhism in Sri Lankan life. While Sri Lanka's courts have not always affirmed litigants' claims about Buddhism, the very act of legal contestation has elevated into matters of public concern questions about the nature of Buddhism, who is authorized to speak for it, and how it ought to be protected. In pursing these questions, courts and litigants have authorized and publicized certain types of religious divisions: between Buddhists and â€?anti-Buddhist' governments, between Buddhist monks and laypersons, between orthodox Buddhists and heterodox Buddhists, between Buddhists and non-Buddhists (Hindus, Christians, Muslims, Tamil separatists), and between Buddhism and the corrupting effects of global industry, transnational Christianity, and â€?the West'. Litigants and judges have also endorsed the need to protect a variety of objects (for example, temples, educational institutions, practices, monks, texts, archaeological sites, villages, images, and conscience) from a variety of threats (for example, government agents, heterodox monks, Tamil Tiger militants, Muslim interlopers, international corporations, foreign governments, and Christian proselytizers).
Since its introduction in 1972, the range of interpretations of the Buddhism Chapter has expanded, keeping pace with and reflecting a growing number of political and social concerns. The very mechanisms designed to expand the availability of public law remedies - protocols of judicial review and fundaÂmental rights jurisdiction inspired by traditions of liberal constitutionalism - have made available channels for making public, constitutional claims about Buddhism. In fact, today one even finds a consistent, almost routinized, legal format for Buddhist-interest litigation. In many cases, litigants use judicial review or fundamental rights petitions to advance specific arguments about how to protect Buddhism: they claim that a certain bill or a certain governÂment initiative contravenes or is likely to contravene the state's duties to Buddhism and/or certain fundamental rights; once the case has been granted leave by the Supreme Court, they then use the hearing to publicize and validate particular visions of Buddhism, threats to it, and the ideal nature of the state's relationship with it. This format has been employed frequently. As a result, Sri Lanka has seen a gradually expanding culture of Buddhist-interest litigation.
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