by Benjamin Schonthal and Asanga Welikala, Centre for Policy Alternatives, Colombo, August 2016
Buddhism-and-the-regulation-of-religion-in-the-new-constitution-Working-Paper-3
…This Working Paper offers a legal and historical overview of the issue of Buddhism in Sri Lanka’s constitution, which, we hope, will help the Constitutional Assembly in its deliberations. We also hope that this Working Paper will help advance discussions beyond the normal terms of public debate that tend to frame the issue. At the centre of most public discussions of the Buddhism Chapter – from both defenders and critics alike – is a concern with the Buddhism Chapter’s expressive functions, its role in communicating and endorsing a hierarchy of religions. While this function is important, it is not the only important matter to consider. Also vital for constitutional discussions is an awareness of the Buddhism Chapter’s history and its regulatory functions, its legal effects on society when used as an instrument of litigation. In short, the Constitutional Assembly will be better positioned to undertake meaningful revision of the Buddhism Chapter – or to leave it as it is – if members have a clear understanding of why previous constitution drafters chose the words they did, while also being aware of how litigants and judges have interpreted and deployed those words over the last 40 years.
This Working Paper unfolds in four sections. Sections I and II give overviews of the Buddhism Chapter’s history and its uses in litigation, and offers several “lessons” that Constitutional Assembly members might take away. In Section III, we use these lessons to assess the PRC recommendations and to discuss four options available to drafters for addressing religion in the new constitution, as well as some of the advantages and disadvantages associated with each option. A short Executive Summary appears at the end of the paper, distilling a number of key points from the Working Paper…
Summary: Lessons Learned and Reform Options
Three Lessons from History before the Constitutionalisation of the Buddhism Chapter (Art. 9)
Lesson 1: The long-standing grievances and demands that gave rise to the Buddhism Chapter – and its parallel provisions for promoting Buddhism and protecting fundamental rights – are similar to those expressed today. These demands emerged initially in reaction to the 1948 Constitution, which was felt to be inadequate in regard to the state’s role in the protection of Buddhism and other religions. Even today, debates over these provisions bear the imprints of these struggles for independence, sovereignty, and cultural recuperation that define the period from the 1940s to 1972.
Lesson 2: The Buddhism Chapter is not, and was never intended to be, a precise and univocal provision; rather, it was designed purposefully as a vague and multivocal clause in order to avoid and/or bridge the demands of multiple groups. The formulation adopted by the 1972 Constitution, and with a slight amendment the 1978 Constitution, seeks to reflect two types of compromise: first, an inter-religious compromise between those who demanded special prerogatives for Buddhism and those who wanted equal protections for all religions; and second, an intra-religious compromise between Buddhists who wanted greater state supervision over Buddhism and those who wanted to protect monastic autonomy.
Lesson 3: Many of the deepest disagreements regarding the Buddhism Chapter occurred not between Buddhists and non-Buddhists, but among Buddhists themselves. One of the main reasons that the Buddhism Chapter adopted the language of “foremost place” was because Buddhists could not agree as to how much influence the government should have over the affairs of Buddhist monks. These disagreements continue into today…