Secularizing separatism, territorializing Buddhism

The links between the Buddhism Chapter and Sri Lanka's civil war date back to the mid-1970s, when Tamil separatists began to oppose the policies of Sri Lanka's 1972 Constitution. The document that served as the main manifesto for Tamil nationalism, the Vaddukodai Resolution, explained the need for a separate state of Tamil Eelam (Tamil: tamilīlam) in the island's north and east, in part as a response to the fact that Buddhism had been singled out for special privileges in Sri Lanka's newly ratified supreme law:

In contrast to the Sri Lankan state, which protected only one religion, Tamil nationalists intended the desired state of Tamil Eelam to be one whose government would be committed to the ‘equal protection and aid . . . [to] all religions practised by the people in the State’.Footnote ²⁰ In Tamil-language texts this meant a state ‘that did not bend towards [a specific] religion’ (Tamil: matacārparra).

The demands for a religiously impartial state—as opposed to the perceived pro-Buddhist state chartered by the 1972 Constitution—quickly became a centrepiece of several militant Tamil rebel groups in the late 1970s and 1980s. The group that would come to dominate the armed struggle for a new state, the Liberation Tigers of Tamil Eelam (or LTTE), publically committed itself to secularism and a repudiation of the Buddhism Chapter. In written propaganda, Tamil Eelam was regularly defined as a ‘secular socialist state’. In speeches, the LTTE's leader, Velupillai Prabhakaran, described the group as an areligious force fighting against a Sri Lankan state in which ‘Sinhala Buddhist chauvinism was the national doctrine’.Footnote ²¹

From the late 1970s onwards, Tamil claims for a separate ‘secular’ state were mirrored in reverse in the claims of a growing number of pro-war Sinhalese politicians, religious leaders, and activists, who increasingly used the legal obligations contained in the Buddhism Chapter to defend and encourage the government's military action against the LTTE. In the discourse of Sinhala Buddhist nationalists, the state's constitutional commitments to Buddhism entailed obligations to defend Buddhist sacred sites in the Tamil-majority north and east of the island from Tamil vandals. In testimonies before a special presidential commission which was convened in the late 1970s to investigate incidents of Tamil-Sinhalese violence,Footnote ²² Buddhist witnesses from the Young Men's Buddhist Association blamed hostilities in part on ‘the grave situation’ endangering Buddhist ‘cultural objects’:

These charges built upon earlier accusations, made by Buddhists in the late 1960s, that Tamils in Jaffna and Batticaloa had sought to intimidate Buddhist monks and laypersons living in the area by building Hindu shrines adjacent to Buddhist temples and by cutting down bodhi trees, which are sacred to Buddhists.Footnote ²⁴

By the early 1980s many politicians, activists, and Buddhist groups insisted that protecting Buddhism required protecting Buddhist holy places. Buddhist defence groups formed to mobilize Buddhist laymen and monks in defence of sacred sites. Prominent among these groups was the Mavbima Suräkīma Vyāpāraya (Sinhala: Movement from the Protection of the Motherland), a collection of Buddhist political leaders (including a former prime minister), professionals, lay Buddhist organizations, and monks. They opposed a government-backed proposal to devolve power to Tamil-majority areas. From 1986 through to the early 1990s, the Mavbima Suräkīma Vyāpāraya and other similar groups staged rallies, wrote editorials, and lobbied parliament, linking the recognition of Tamil political autonomy with the violation of the state's constitutional duties to protect Buddhism. The movements had militant overtones, calling on monks to take up arms to protect Buddhism through preserving the unity of the island.Footnote ²⁵ Buddhist monks, Buddhist activists, and prominent politicians continued to voice these arguments loudly in the public sphere during the 1990s and 2000s, using territorial interpretations of the Buddhism Chapter to oppose attempts by the government to negotiate with the LTTE or to devolve political power to the provinces.

Shifting state ideologies

In addition to the spread of secular Tamil separatism and territorial Buddhist nationalism, competition over state ideology influenced the way in which Buddhists, in particular, read the Buddhism Chapter. From 1970 to 1977, Sri Lanka's government fell under the control of a government, led by Sirmima Bandaranaike's United Front, that was committed to implementing policies of welfare socialism. These policies increased state control over many aspects of economic and social life. Bandaranaike's government rapidly extended state control over land, trade, industry, media, education, and religion.Footnote ²⁶ Between 1970 and 1976 her government nationalized over one million acres of privately held land, established over 100 state corporations to run vital sectors of the economy, and passed legislation allowing the state to take over many private businesses.Footnote ²⁷ The government also introduced policies to manage religion, including laws mandating that all Buddhist monks should be issued with identity cards, that religious education come under closer state scrutiny, and that all religious communities gain government approval before building or renovating places of worship (see below).

Beginning in 1977, a new United National Party-dominated government, led by J.R. Jayewardene, reversed Bandaranaike's policies and began a programme of liberalization aimed at encouraging an open, modern, ‘righteous’ (Sinhala: dharmistha) society. With this reversal came new interpretations of the Buddhism Chapter. Under Jayewardene, the government aimed to reduce the state's reach into industry and family life, making businesses more independent and citizens less reliant on public subsidies. It established free trade zones on the southwestern coast, privatized state cooperatives, encouraged foreign investment, and used international loans to finance large development projects in the island's rural areas. In public addresses, Jayawardene suggested that what was good for the nation's industrial order was good for the nation's religious order. Jayawardene approached the promotion of Buddhism in free-market terms, insisting that ‘[t]he Buddha never for a moment thought that it was possible to reform society through legislation’.Footnote ²⁸ According to Jayawardene, the government could not legislate Buddhist values or practices; the protection of Buddhism had to be undertaken independently, by individual Buddhists.

Both ideologies of government—Bandaranaike's state-centric socialism and Jayawardene's privatizing liberalism—found expression in the legal debates concerning Buddhism from the 1970s onwards. Each ideology encompassed a different understanding of what it meant to protect Buddhism. Defenders of these understandings clashed in courtrooms. The managed welfare state of the Bandaranaike government appeared to associate protecting and fostering Buddhism with a paternalistic act of state intervention, of using laws and state agencies to administrate Buddhist monks, sites, and institutions. Jayawardene's liberalism appeared to treat the protection of Buddhism as involving indirect support for Buddhists. Jayawardene gave state money generously to Buddhist causes (for example, for temple upkeep, monastic education, and public Buddhist rituals), yet he was careful to place institutional boundaries between the state and religion, rejecting strenuously the idea of monks influencing politics and refusing to create ordinances that policed Buddhist morality through, for example, restricting alcohol or meat consumption.Footnote ²⁹

Also implicated in the political and ideological contest between the United Front's socialism and the United National Party's liberalism were competing ideas about the costs and benefits to Buddhism of Sri Lanka's integration into broader networks of global capitalism. Interpreted through Jayewardene's ideology, Buddhism benefited from an open economy because exposure to international markets and foreign investment enhanced national prosperity, and that prosperity increased the resources available for promoting Buddhism. At the same time, global exposure also contributed to public anxieties over the malignant effects of foreign influences and organizations on Sri Lankan Buddhism.

Idioms of litigation

Since the 1970s, in this context of intermittent civil war and economic change, Sri Lankan litigants regularly appealed to the island's courts to enforce the state's constitutional duties to protect Buddhism. Through legal action, Sri Lankans expressed a range of concerns about religion, politics, economics, war, and globalization coopting the language of protecting Buddhism. This Buddhist-interest litigation can be grouped into four types—four ‘idioms of litigation’—according to the major assertions made regarding what Buddhism is, how the state ought to defend it, and what or who threatens it. In the first idiom, litigants sought to protect Buddhism's autonomy from unwanted government interventions. In the second idiom, litigants sought to protect Buddhist orthodoxy against what they considered heterodox Buddhist monks. In the third idiom, litigants sought to protect Buddhist places from non-Buddhist interlopers. In the fourth idiom, litigants sought to protect Buddhism against foreign ‘profaners’. In all cases, Buddhist-interest litigation, even when it failed to generate an affirmative judgment, provided potent opportunities for expanding the importance of religious claims in public life and potent incentives for litigants to rethink and reclassify complex social realities in terms of constitutional commitments to promote Buddhism.

Idiom one: protecting Buddhist autonomy from the state

Sri Lanka's constitution specifies special protections for Buddhism, but it does not specify the precise relationship between religious authority and civil authority. The language of ‘protecting and fostering’ Buddhism was chosen because it neither implied nor denied the possibility of state oversight over Buddhist institutions and monastic life.Footnote ³⁰ In the context of the nationalizing and socialist policies of the Bandaranaike government, litigants used this evasive language to implicate Buddhism in broad debates about the appropriate aims and limits of state regulation. In particular, litigants invoked constitutional protections for Buddhism and for religion-in-general to attack attempts to expand the state's management of religious life.

Constitutional duties to protect Buddhism, along with new protocols of judicial review, figured prominently in two important judicial review cases, from 1973 and 1976. In these cases, litigants sought to compel the island's highest administrative court at that time, the Constitutional Court, to review the policies of Bandaranaike's United Front government. The challenges related to two government bills. The first bill, entitled the ‘Places and Objects of Worship Bill’, specified a list of registration and application requirements that all religious groups, including Buddhists, would have to fulfil in order to gain official approval to build or renovate a site of religious worship. The second bill, entitled the ‘Pirivena Education Bill’, gave the government greater control over Buddhist schools (pirivenas), where most of the island's monks were educated. An opposition minister of parliament, Prins Gunasekera, an accomplished lawyer and outspoken politician, challenged the first bill.Footnote ³¹ A much larger collection of petitioners challenged the second bill. These petitioners included leaders from Colombo's major lay Buddhist organizations,Footnote ³² 11 senior Colombo-area monks, and a senior civil servant.

In using the Buddhism Chapter to petition for judicial review, petitioners framed their concerns about the centralizing ambitions of the Bandaranaike government in terms of the state's powers over Buddhist life. One can infer the importance of petitioners’ political interests from the fact that the very people and organizations that argued most fervently in favour of the state's supervisory powers over Buddhism during the constitution-making process, now offered equally passionate arguments against such powers in court.Footnote ³³ The petitioners argued that the proposed government bills violated the terms of the Buddhism Chapter because they subordinated Buddhist institutions to non-Buddhist (secular or anti-Buddhist) state authority.

In the first case, concerning the Places and Objects of Worship Bill, the petitioning politician from the opposition argued that requiring Buddhist groups to gain approval from the Ministry of Cultural Affairs to build a Buddhist temple would be to destroy ‘a historical right and freedom that has been enjoyed by Buddhists for over 2500 years, of freely practising and propagating the Buddha Dhamma’.Footnote ³⁴ He argued that the bill, in its requirement that Buddhists gain government approval, would subject Buddhism itself to ‘subtle, anti-religious, anti-cultural’ influences.Footnote ³⁵ This, he asserted, was because ‘anti-Buddhist’ Trotskyite and Communist ministers (key coalition members in the United Front government) controlled the relevant ministries.

The collection of petitioners in the second case, concerning the Pirivena Bill, made similar arguments regarding the proposed controls over monastic education. Any attempts by the state to extend regulatory powers over Buddhist schools, they argued, would be to ‘interfere with the autonomy of Buddhist institutions’, to ‘usurp’ monastic property and to ‘take over effective control’ of Buddhist education.Footnote ³⁶ In making these arguments, petitioners deployed a capacious definition of Buddhism, which encompassed places, practices, people, values, teachings, and customs, all of which, they insisted, thrived solely in the absence of government involvement. The protection of Buddhism, they urged, required the withdrawal of the state from a broad zone of Buddhist institutional autonomy.

In two public and reported decisions, judges of the Constitutional Court, many of them sympathetic to the government and appointed by Bandaranaike herself,Footnote ³⁷ defended the legality of the government's bills and, in so doing, offered differing definitions of Buddhism and how the state ought to protect it. In the first case, the court behaved in a manner consistent with Hirschl's predictions. It dismissed Buddhists’ religious concerns, rejecting claims that government ministers might execute an anti-Buddhist agenda. The court pointed out that the bill, which had been drafted in order to regulate all religions, did not especially disadvantage Buddhism per se. However, although it rejected Gunasekera's petition, the court unwittingly gave credibility and visibility to important aspects of his argument. Aside from the publicity generated by the petition, the petitioner gained an important affirmation of sorts. In the detail and length of the judges’ arguments (discussed below) about why Buddhism was not damaged by the Places and Objects of Worship Bill, the court found itself indirectly affirming the need for Sri Lanka's judiciary to look closely at the effects of government policies on Buddhism. Therefore, even though the Constitutional Court ultimately rejected the specific rationale behind Gunasekera's claims, it validated publically one of his larger claims: that the state had a special obligation to safeguard Buddhism, and that obligation could override and challenge the government's policies of nationalizing the island's institutions.Footnote ³⁸

The decision in the first case not only (re)affirmed the necessity of protecting Buddhism, it led the court to advance a particular definition of Buddhism. To make the case that the bill did not offend Buddhism, judges interpreted Buddhism through the lens of First Amendment jurisprudence in the United States of America. Citing the American Supreme Court decisions involving the religious ‘free exercise’ rights of polygamous Mormons in Idaho and proselytizing Jehovah's Witnesses in Connecticut,Footnote ³⁹ the Sri Lankan Constitutional Court insisted that, notwithstanding its privileged place in the country, Buddhism could be analysed like any other religion, and therefore could be divided into two separate aspects: ‘religion’ which the court glossed as religious conscience, and ‘religious practice’ which the court glossed as an ‘expression’ of religion ‘by overt acts’. While the state must not impede the first, it could justifiably limit the second. Relying on American jurisprudence, the court advanced the argument (a specious one for many Buddhists) that building places of Buddhist worship was simply a form of religious practice rather than ‘religion’ and could therefore be limited without impinging upon ‘Buddhism’.

In the second, Pirivena Bill case, the Constitutional Court bisected Buddhism in a similar way to respond to petitioners’ claims. In this case, the court majority invoked an almost identical contrast between a primary religious belief (which they termed ‘religion’) and a secondary religious ‘manifestation’. However, the relevant question here was not whether pirivena education should be classified as either religious belief or religious manifestation, but if pirivena education should be viewed as religious at all: did Buddhist monastic schools constitute a ‘manifestation’ of ‘the Buddhist religion’? In a split opinion, the two-justice majority relied on another act of bisection to insist that Buddhist schools were not, in fact, part of Buddhism. It argued that one's religious beliefs were completely distinct from the creation and maintenance of religious institutions:Footnote ⁴⁰ the first was a protected ‘religious right’, the second was not.

In these early cases concerning the Buddhism Chapter, petitioners invoked constitutional duties to Buddhism as part of an effort to challenge the government and its policies. Arguments about Buddhism merged with, and served as proxies for, conflicts over political commitments and governing ideologies. Petitioners harnessed legal arguments about protecting Buddhism as part of a broader aim to resist the Sirimavo Bandaranaike government and its managerial approach to governance. By using constitutional law, petitioners blended ideas about protecting and fostering Buddhism with political calculations; and they cast broader disputes as specific questions about what Buddhism was and how the state should conduct itself towards it: did the state's constitutional duties to Buddhism permit or even require the government to actively intervene in the administration and oversight of Buddhist institutions, or did they require the state to carve out for Buddhism a zone of autonomy from state actions? Did Buddhism refer to a broad range of people, places, properties, teachings, and institutions or to a narrower core of essential beliefs (leaving a penumbra of less essential practices upon which the state could legitimately intrude)?Footnote ⁴¹ Was protecting Buddhism the same as protecting ‘religion’?

Answers to these questions not only implicated opposing conceptions of Buddhist temples and pirivenas, they coalesced into larger opposing visions of religious governance, religiosity, Buddhist identity, and religious difference. Where petitioners rejected the binary splitting of religion into belief and practice, judges affirmed it. Where petitioners valorized the importance of religious autonomy, judges valorized the importance of formal neutrality. Where petitioners resisted the homology of Buddhism to other ‘religions’, judges assumed it. Where petitioners advanced a broad glossing of Buddhism, (most) judges chose a much narrower belief-centric definition. Arguments about Buddhism made political divisions religiously salient, and made religious divisions politically salient. In their invocation of the Buddhism Chapter, judicial review cases drew litigants and judges into asserting rival visions of Buddhism as part of challenging or supporting the constitutionality of the Bandaranaike government's policies. By invoking the Buddhism Chapter in the context of constitutional review, litigants required the country's highest administrative court to deliberate on—and to that extent, publically affirm—the state's constitutional duties to protect Buddhism as well as to judge the ‘Buddhist-ness’ of the Bandaranaike government. Therefore, even if the petitioners’ own vision of protecting Buddhism did not prevail, the use of constitutional law elevated their assertions about Buddhism (which were also assertions about politics) to matters of national concern. As such, those assertions would be recorded in official documents, publicized through newspapers, and discussed by legal experts around the island.Footnote ⁴² As the petitioning lawyer in the first case explained to me, the goal was not so much to win the case; it was to ‘create public opinion on the issue’.Footnote ⁴³

Idiom two: protecting Buddhist orthodoxy

If some litigants invoked the Buddhism Chapter as a way to contest the Buddhist-nature of government policies, other litigants invoked it to compel the state to enforce Buddhist orthodoxy. In 1977, at the fulcrum moment between the welfare socialism of the Bandaranaike years and the economic liberalism of the J. R. Jayawardene government, Sri Lanka's highest court took up the case of Ven. Nakulugamuwa Sumana Thero.Footnote ⁴⁴ Ven. Sumana was a Buddhist monk who, having completed his law degree in Colombo, decided to submit the necessary documents to enrol as an attorney. As a matter of procedure, Ven. Sumana's name appeared in the newspaper along with other candidates who had made application to take their oaths as lawyers. Upon discovering that a Buddhist monk was preparing to become a lawyer, several Buddhist lay organizations in Colombo lodged formal objections with the Supreme Court, which had jurisdiction over application to the bar, requesting that his application to the bar be refused.Footnote ⁴⁵

The Buddhist groups’ challenge initiated a highly public and controversial Supreme Court case. Noting the novelty of the matter, the chief justice referred it to a full, five-justice bench, declaring the case ‘the first case of its kind in the annals of our Courts’.Footnote ⁴⁶ Two groups of litigants appeared before the court, supporting and opposing Ven. Sumana's right to apply to the bar with equal vehemence. Ven. Sumana's application was opposed by virtually the same constellation of Colombo-based Buddhist lay organizations that had challenged the Pirivena Bill, including the Young Men's Buddhist Association, the All-Ceylon Buddhist Congress, and the Buddhist Theosophical Society. Ven. Sumana's application was supported by the same lawyer-politician who had challenged the constitutionality of the Places and Objects of Worship Bill, Prins Gunasekera. Gunasekera, in turn, had the support of several senior Buddhist scholars and monks, including the prelates from Ven. Sumana's monastic fraternity. If, in the earlier cases, Buddhist groups had united in criticizing the government, the question of monks in secular employment provided an occasion for new alignments, showing that the idea of protecting Buddhism could be used to support many different agendas and coalitions.

Although the matter before the court pertained to the specific activities of one monk, litigants used the case to advance much broader visions of Buddhism and the state's obligations to it. Those who opposed Ven. Sumana contended that protecting Buddhism required the state to ensure that monastic life remained aloof from worldly concerns. If one monk were to become a lawyer, they argued, this would encourage other monks to do so. This could lead, in turn, to widespread violations of the Pali code of monastic discipline, the Vinaya Pitika, and that would threaten the ‘larger interests of Buddhism’.Footnote ⁴⁷ Those who supported Ven. Sumana's admission—including Ven. Sumana's monastic superiors and a leading Buddhist academic—also claimed to protect Buddhism. Protecting Buddhism, for them, meant securing the autonomy of head monks to supervise the conduct of the less senior monks in their fraternities. To protect Buddhism, they argued, the Supreme Court must accept the decision made by prelates in Ven. Sumana's own monastic fraternity to permit his admission to the bar.

These competing visions of Buddhism split the judges on the court. A three-justice majority supported Ven. Sumana's application and affirmed the idea that the ultimate evaluator of monastic conduct ought to be the prelates of individual monastic fraternities, rather than state-court judges’ interpretations of Pali texts or the opinions of monks from outside of that fraternity. In this case, they insisted, Ven. Sumana's direct monastic superiors must be regarded as ‘final arbiters’ whose dicta ‘can hardly be questioned by this court and must be accepted by us . . . [as] the only evidence before us’.Footnote ⁴⁸ As with the cases above, Supreme Court justices justified their ruling according to a particular definition of Buddhism. In this case, the court majority divided Buddhism into a core set of ‘doctrine and belief’ that are ‘immutable’, and a secondary system of ‘discipline and administration [that] are naturally subject to modifications’.Footnote ⁴⁹ Norms of monastic conduct—and even the Vinaya Pitaka itself—fell into the second category because, the majority insisted, different monastic fraternities used different redactions of the Vinaya and thus followed slightly different sets of rules.Footnote ⁵⁰ The majority reasoned that because standards of monastic conduct changed from fraternity to fraternity (unlike Buddhist doctrine), devolving disciplinary authority over monks to those fraternities could not be avoided nor would it ‘ruin’ Buddhism as a whole. The majority also declared that the lack of a single source-text for assessing monastic comportment made any attempt to audit monks’ behaviours a matter that was ‘purely ecclesiastical in nature’ and ‘outside the pale of civil law’. As ‘secular’ authorities, they asserted, judges must not present themselves as religious experts.

Through their petitions, opponents and supporters of Ven. Sumana made public claims about the importance of protecting Buddhism in the form of two competing ideas about what threatened Buddhism: supporters claimed that by assessing the piety of Buddhist monks, the state risked violating the autonomy of the sangha (the community of Buddhist monks). It also risked improperly arrogating for itself ‘ecclesiastical’ authority. Opponents claimed that by refusing to intervene in disputes over orthodoxy, the state risked a gradual degradation in monastic discipline and, thus, over the long term, a more general damaging of Buddhism. Like the petitioners against the government bills in the first idiom of litigation, petitioners against Ven. Sumana's application recruited the country's highest court into debates over the nature and valid sources of Buddhist authority. In discussing the ostensibly singular act of ‘protecting and fostering’ Buddhism, litigants made questions over Buddhist orthopraxy and authority matters of state concern. In the years that followed, litigants would continue to do so in court cases involving, among other things, monks working in salaried employment as social workers and monks who wanted to drive cars.Footnote ⁵¹

Looking only at official legal documents, like court decisions,Footnote ⁵² one might conclude that the court ruling resolved the matter. (The court ruled that monks could, in fact, apply to become lawyers.) Viewed from the perspective of the litigant, however, these petitions appear to have had a different effect. Through litigation, petitioners raised the profile of debates over Sumana's conduct and the need to protect Buddhism. That is, they brought difficult, divisive questions into a highly visible and public arena. This had important consequences for Sumana himself. Although a majority of the Supreme Court affirmed his right to make application to the bar, ultimately negative public attention generated by the court case seems to have swayed things in the opposite direction. When Ven. Sumana returned to the Supreme Court to take his oaths as a lawyer, the same bench denied him entrance on account of technical, sartorial requirements: even if a monk could be admitted to the bar, the chief justice asserted, a saffron robe could not substitute for the customary black and white suit of an advocate.Footnote ⁵³

Idiom three: protecting Buddhist places

One can see certain trends in the Buddhist-interest litigation cases examined so far: by invoking the Buddhism Chapter in court, litigants translated specific concerns into broad, public, consequential claims about Buddhism. Through the use of constitutional language and litigation, litigants conflated opposition to government policies with contests over the state's duties to secure Buddhism, and they joined together opinions regarding the conduct of Buddhist monks with public disputes about the state's duties to conserve Buddhist orthodoxy. One can extend these observations further by looking at a third genre of cases. In these cases, litigants interpreted the state's duties to protect and foster Buddhism as a requirement that the state would intervene to defend Buddhist temples, archaeological sites, buildings, properties or villages against non-Buddhists who, they insist, might harm them. These cases have roots both in the context of Sri Lanka's civil war in the 1980s and in the context of increasing exposure to transnational agencies and actors in the 1990s and 2000s. In these cases, litigants treated the protection of Buddhism as a requirement to protect purportedly Buddhist spaces. Litigants’ definitions of Buddhism in these instances, therefore, directly opposed those offered by the Constitutional Court in the first idiom: true Buddhism was not primarily a collection of doctrines, beliefs, and states of conscience, nor was it a combination of distinct beliefs and manifestations. Buddhism, as a religion, depended equally upon temples, shrines, bodhi trees, gifted properties, and villages of Buddhist patrons—in other words, on the spaces inhabited and visited by Buddhist laypersons and monks.

In these cases, litigants rendered constitutionally legible and made politically salient different types of conceptual, legal, and political boundaries. Rather than using constitutional protections for Buddhism to advance the interests of a particular political bloc or a particular group of Buddhist monks, in these cases litigants used constitutional litigation to reify a stark distinction between Buddhism and other religions. They not only introduced to the country's apical courts arguments about the superior status of Buddhism vis-à-vis other religions, they advanced arguments about the incommensurability of Buddhism with other religions. This line of argument assumed that even the terms ‘Buddhism’ and ‘religion’, along with their Sinhala approximations (buddhāgama and āgama), should not be used to name the Buddha's dispensation because those terms suggested equality and isomorphism among all traditions.Footnote ⁵⁴ By using those terms, Buddh-ism (Sinhala: buddha - āgama) appeared analogous to Hindu-ism (S: hindu-āgama) and Christian-ity (S: kristiyāni-āgama).

The idea that the Buddha's dispensation was more than simply a form of religion (āgama), in fact, influenced those who drafted Sri Lanka's Second Republican Constitution of 1978.Footnote ⁵⁵ In the 1978 Constitution, a United National Party-dominated select committee of parliament made one small but salient change to the Buddhism Chapter at the last possible moment: it altered the phrase ‘it shall be the duty of the state to protect and foster Buddhism’ to read ‘. . . to protect and foster the Buddha Sasana (Sinhala: buddha śāsanaya)’. Choosing ‘Buddha Sasana’ rather than Buddhism (Sinhala: buddhāgama) highlighted the distinctiveness of the Buddha's dispensation; everything else was simply ‘religion’.Footnote ⁵⁶ Choosing ‘Buddha Sasana’ also supported those who favoured a territorialized definition of Buddhism because buddha śāsanaya implicated not only the Buddha's teachings but his entire legacy, which included properties, shrines, statutes, temples, other material objects, and geographic spaces.Footnote ⁵⁷

Litigants rendered this view of protecting Buddhism—as explicitly including the protection of Buddhist spaces—nationally visible and legally influential in three cases from 1987, 2003, and 2008. In each case, Buddhists petitioned the Supreme Court, requesting that it require the government to guard Buddhist places (temples, historic sites, villages) from threats by Hindu Tamils, Christians, and Muslims, respectively.

One of the most important instances of constitutional action of this type occurred in 1987 in a Supreme Court case that one justice referred to as ‘the most important and the most far-reaching that had ever arisen in the history of our courts’.Footnote ⁵⁸ In a climate of deepening political riftsFootnote ⁵⁹ and escalating hostilities between the government and the LTTE (including a recent LTTE attack on Buddhist monks), a number of lawyers, politicians, and Buddhist groups submitted judicial review petitions to the Supreme Court contesting the constitutionality of two pieces of legislation designed to give greater political autonomy to Tamil-majority regions of the island in the north and east.Footnote ⁶⁰ Among the Buddhist petitioners, the Colombo-based lay organization of the Young Men's Buddhist Association filed a substantial petition. It argued that in order to fulfil its obligations to protect Buddhism, the state must guarantee the preservation, maintenance, and restoration of Buddhist historical sites and temples in the northern and eastern parts of the island. By proposing to devolve political authority to provincial governments, the group argued, the state was not only reneging on that duty, it was proposing to place control over those sites in the hands of non-Buddhists who had been engaged in a ‘studied and sedulous campaign . . . to obliterate all traces of places of ancient Buddhist worship’.Footnote ⁶¹ The Young Men's Buddhist Association's reading of the Buddhism Chapter failed to persuade a (narrow) four-justice plurality. However, it did find approval in two prominent dissenting opinions, one of which recognized explicitly the territorial implications of ‘Buddha Sasana’, the new term added in the 1978 Constitution:

This interpretation of the Buddhism Chapter gave public expression and validation to the Young Men's Buddhist Association's territorial definition of Buddhism. This definition and the text of the dissent continue to influence legal specialists and politicians in Sri Lanka.Footnote ⁶³

In recent years, litigants have used the courts as forums for giving new inflections to this territorial understanding of Buddhism. These inflections stress the protection of Buddhist places while also imagining those places as threatened by Christian proselytizers (not only Tamil militants) and as including Buddhist villages (not only temples and archaeological sites). Since the late 1990s, litigants have used territorialized interpretations of the Buddhism Chapter to challenge the building of Christian prayer centres in rural, predominately Buddhist areas. Even through the critical legal questions often pertain to zoning regulations, litigants foreground in their petitions appeals to protect the Buddhist demography and culture of villages. For instance, in one case, representatives from the lay Buddhist organization, the Secretariat for Upliftment and Conservation of Cultural, Educational and Social Standards of Sri Lanka (SUCCESS), challenged the building of a new church near the town of Polonnaruwa, insisting, among other things, that the construction was ‘obnoxious and/or repugnant’ to the state's obligations to protect Buddhism, because ‘the objective of the construction and occupation of said building [is] the spreading and /or propagation of a religion other than Buddhism in the predominately Buddhist District of Polonnaruwa amidst villages that comprise about 97% Buddhists’.Footnote ⁶⁴ According to the petitioner, the protection of the Buddha Sasana required the state to protect Buddhist villages against non-Buddhists’ attempts to build competing places of worship because this might lead to the spread ‘a religion other than Buddhism’.Footnote ⁶⁵ In the logic of these submissions, general concerns for the protection of Buddhism extend even to the demography of remote villages.

Through Buddhist-interest litigation, Buddhist organizations in the island's major urban areas of Colombo or Kandy claimed a legitimate interest—and legal standing—in the religious lives of agrarian communities dozens or hundreds of kilometres away. Protecting Buddhism, in these cases, assumes a further spatial dimension. Litigants use constitutional protections for Buddhism to argue not only for the necessity of state actions, but to pursue formal judicial recognition that Buddhists from one part of the country have a legitimate interest in the affairs of Buddhists in other parts of the country. That is, in the very framing of their petitions, particular Buddhist groups presented themselves as acting for ‘the advancement and protection of economic, social and cultural standards of the Sri Lankan Buddhists (emphasis mine)’.Footnote ⁶⁶ Moreover they implicitly maintain the idea of the whole of Sri Lanka as a single, continuous space for Buddhism.

Court cases such as the one described are often invisible in the official, public archive of constitutional law because they do not leave published judicial decisions. (In many instances, Christian or Buddhist litigants withdrew their petitions before any official decision was given, in order to avoid an anticipated unfavourable judgment.)Footnote ⁶⁷ However, despite the lack of published records, cases like these frequently become vehicles for rallying public attention. According to Christian and Buddhist religious leaders and activist groups that I spoke with, as well as the lawyers who represented them, building non-Buddhist worship sites in Buddhist-majority areas remains a highly incendiary issue in modern Sri Lanka. Conflicts over church building, in particular, have led to arson and vandalism against churches and physical attacks on churchgoers. In these cases, legal appeals to the Buddhism Chapter enable litigants to treat local conflicts among religious communities as grand constitutional contests over Buddhism. Disagreements that emerge from contextual circumstances or local, personal acrimonies come to be interpreted in the framework of broad questions over how the state ought to act with respect to Buddhism: should the state take measures to control the building of non-Buddhist religious sites in areas with large Buddhist majorities, in the interest of ‘protecting Buddhism’?

A lack of published rulings on these questions has not stopped litigants from provoking them. In 2008, the island's apical court heard a fundamental rights petition involving the protection of Buddhists living near a particularly important temple in the east of Sri Lanka, the Digavapi (sometimes transliterated Deeghawapiya) Raja Mahavihara. In the opinion of the chief justice (and many others), the case had special ‘sensitivity . . . from the perspective of Buddhists, not only in that area but in the entire country’.Footnote ⁶⁸ While the Supreme Court's decision did not mention violations of the Buddhism Chapter, arguments about Buddhism's ‘foremost place’ were prominent in written submissions and courtroom arguments and were absolutely central in the media attention surrounding the case.Footnote ⁶⁹ The case involved the building of 500 homes to house victims of the December 2004 tsunami. The homes were financed by the Saudi Arabian government and earmarked for Muslim displaced persons. While other housing settlements had been built for Tamils and Sinhalese in other parts of the island,Footnote ⁷⁰ the Muslim dwellings were located 13 kilometres south of the Digavapi temple, in a location halfway between the temple and a community of Buddhists who frequented the temple. In 2008, Ven. Ellawala Medhananda Thero, a Buddhist monk and senior member of the Jathika Hela Urumaya (or National (Sinhala) Heritage Party)—a political group well known for its pro-Sinhalese, pro-Buddhist politics—filed a petition to the Supreme Court claiming that, among other things, ‘the settlement of such a large number of Muslims within close proximity to the Raja Maha Viharaya would block further expansion of Sinhala Buddhist residents who are now living close to the Viharaya’. This, in turn, would threaten the vitality of Buddhism and the existence of the temple in the area.Footnote ⁷¹ The petition acquired the support of approximately 20 intervening petitioners, including Buddhist monks (among them, the chief incumbent monk of the Digavapi Mahavihara), government servants’ associations, and Buddhist lay organizations, many from Colombo.Footnote ⁷²

Most of the petitions submitted by Buddhists included a clear demand that the court should find the Muslim settlements illegal, in large part because they violated the state's obligation to protect Buddhism. In a key interpretive move, petitioners associated protecting Buddhism with preserving the links between the temple and the surrounding Buddhist community. According to one petitioner, the settlements threatened to ‘encircle the Deeghvapiya Bauddha Janapadaya [Digavapi Buddhist region] with Muslim settlements’ and, in so doing, to squeeze out Buddhists living in the area.Footnote ⁷³ The petition argued, ‘it is the duty of the State to protect and foster Buddha Sasana [and] the Buddha Sasana cannot be protected if the appertaining village (Goduru Gammanaya [on this phrase see below]) is not maintained and preserved’.Footnote ⁷⁴ In the words of another submission offered by the head of a Colombo-based Buddhist foundation:

In the arguments of the petitioners then, to protect Buddhism the state must protect Buddhist places, and to protect Buddhist places the state must protect the networks of lay Buddhists who tend to the temple, donate money for its upkeep, and offer support to the monks who live there. The arguments suggested that protecting the Buddha Sasana required defending broader social geography, a goduru gammana, or ‘prey village’, upon which local monks can rely for food, work, and material support:

Litigants in the Digavapi case, as in the church-building cases, construed the state's duties to protect and foster Buddhism as duties not only to secure places of worship but to preserve the broader (Buddhist) community in which those places of worship were situated. In this sense, they used constitutional law to present non-Buddhists as a particular kind of threat: by threatening to alter the religious demography of a particular area, they posed a risk to the existing reciprocity between Buddhist temples and lay devotees.

In the above cases, invoking the Buddhism Chapter in court worked to generate public visibility for a particular social and religious geography. That geography divided the island into a network of Buddhist spaces. Litigants mapped the Buddha Sasana onto a distinct terrain, the location and boundaries of which corresponded to the sites of Buddhist temples, shrines, bodhi trees, and Buddhist communities, sites that were presumed to be physically distinct from other religious and non-religious sites and to be singularly Buddhist properties. Equally pronounced in these cases was the assumption and assertion of the unity of Buddhist persons and practices in Sri Lanka, a unity that was threatened by LTTE separatism and Christian evangelism, and that permitted Buddhists in Colombo to appear in court on behalf of Buddhists living across the island.

Idiom four: protecting Buddhism from profanation

According to a fourth idiom of litigation, litigants appealed to constitutional duties to protect Buddhism as a way to call attention to and to intervene against (what they considered to be) threats posed by globalization and neoliberalism. These cases can be thought to relate to the act of ‘profaning’ religion, by which I mean the purportedly improper mingling and association of practices, ideas, motivations, and objects deemed religious with those deemed economic or commercial.

In two sets of cases—the first, a series of writ petitions submitted initially in 2005; the second, a collection of three separate judicial review petitions against parliamentary bills, beginning in 2000—Buddhist petitioners used the Buddhism Chapter to call upon the state to curb the profaning of religion. In the first case, the petitioner, a Buddhist monk, worried about the profaning of Buddhism itself and implored the court to prevent domestic and international retailers from selling clothing displaying the Buddha's image. In the second case, litigants used the Buddhism Chapter to demand that the state prevent the activities of Christian groups that threatened Buddhism. Here, petitioners asked the court to rule unconstitutional three bills that aimed to give legal incorporation to Christian groups which, they claimed, used financial inducements to gain converts. These cases show similarities with the Digavapi and church-building cases above in their concern that foreign agents used their superior wealth and political influence to interfere with local Buddhist practices and people: in the case of Digavapi, it was ‘overseas’ (particularly Saudi Arabian) Muslim donors; in the case of Buddha images, it was international merchandisers; and in the case of church-building and proselytizing Christian organizations, it was global church networks.

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 ‘merchandised Buddha images which defiles and defame[s] Lord Buddha’.Footnote ⁷⁷ The merchandise in question included swimwear manufactured by Victoria's Secret containing ‘the image of the Buddha displayed on the breasts and crotch areas’,Footnote ⁷⁸ a pair of slippers with Buddha images on them, a candle made in the likeness of the Buddha, and a set of ‘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 ‘emotionally hurt, annoyed and therefore offended’, to be ‘gravely provoked’, and to be made ‘emotionally turbulent’.Footnote ⁷⁹ This would, among other things, contravene Buddhism Chapter obligations to protect and foster the Buddha Sasana.

In his submissions, the monk publically affirmed a categorical opposition between Western capitalistic imperatives and local Buddhist sensibilities:

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 ‘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’.Footnote ⁸¹ 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 lead 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 economics. 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 ‘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.Footnote ⁸² (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,Footnote ⁸³ 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 2001, a petitioner challenged the incorporation of an evangelical ‘prayer centre’ that conducted regular services, faith healing, and charity work.Footnote ⁸⁴ In 2003, two separate petitioners challenged the incorporation of two other groups: one was an independent evangelical ministry whose stated aims included holding ‘deliverance meetings’, building places of worship, organizing workshops, undertaking social services, and holding religious services;Footnote ⁸⁵ the other was an order of Catholic nuns who ran schools, assisted in medical centres, and undertook other social service activities.Footnote ⁸⁶

In all of the cases, petitioners advanced a particular argument concerning the links between religion, economic activity, and Buddhism. Take, for example, the first bill, entitled ‘Christian Sahayane Doratuwa Prayer Centre (Incorporation) Bill’. The bill aimed at giving legal recognition to an organization in Colombo whose stated aims included the following:

1. (a) to encourage the active observance of Christianity;

2. (b) to promote the co-operation of the devotees who have faith in the prayer of God;

3. (c) to provide assistance and aid to need[y] Christians who seek assistance of the Corporation;

4. (d) to cure patients through prayer;

5. (e) to provide assistance to persons in order to solve their problems through prayer;

6. (f) to assist persons in various ways to enable them to obtain job opportunities.⁸⁷

The bill also specified that the proposed corporation should have the powers to raise and borrow money, to maintain bank accounts and draft cheques, to enter into contracts, to administer trusts, to employ workers, to put money in investments,Footnote ⁸⁸ to create corporate funds,Footnote ⁸⁹ and to acquire, hold and sell property.Footnote ⁹⁰ In the challenge to this bill, the petitioner pointed to the presence of both ‘material’ and ‘religious’ objectives in proposed articles of incorporation to argue that the Prayer Centre intended to use ‘material rewards’ and ‘economic assistance’ to ‘induce’ people to adopt Christianity:

According to the petition, neither the religious activities nor the ‘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 ‘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 ‘inconsistent with the Buddhism Chapter’.Footnote ⁹² In the third case (relating to the incorporation of an order of Catholic nuns), the Supreme Court argued further that not only was such mixing ‘inconsistent’ with the Buddhism Chapter, a Christian organization of that type might ‘impair the very existence of Buddhism or the Buddha Sasana’.Footnote ⁹³ No further explanation was given in this case either.

In the cases above—all of which gained widespread attention in the national media as well as in the reports of human rights and advocacy groups abroad—litigants invoked the Buddhism Chapter in order to compel the state to protect Sri Lanka from global forces, religion from non-religion, Buddhism from the profane. In Ven. Kusaladhamma's petitions against images of Buddha, the division between the two corresponded to the contexts of producing, displaying, and using religious images. In the Buddhist petitioners’ objections to incorporating Christian groups, litigants and judges divided religion from non-religion (or, rather, religious from non-religious activity) according to perceived motivations for acting: the first was motivated by ‘spiritual’ considerations, the second by ‘material’ ones. In both cases, litigants identified as threats not only individual merchandisers or retailers, or specific Christian social work organizations, but larger global forces: Western capitalists, international industrialists, even Christianity writ large.