ANTI-COLONIAL RELIGIOUS FREEDOM: THE 1948 CONSTITUTION AND ITS DISCONTENTS

Perhaps the most common law-related diagnosis for religious conflict in Sri Lanka is that both visions of religious freedom described above are not equally legitimate. That is, the awarding of special protections and status for the majority religion is understood to be inherently unfair and therefore incompatible with a just legal order. While principles of secular liberal constitutionalism require that the state remains neutral toward the differing religious convictions of its citizens, such principles tend to downplay the deep impact of colonialism on religious and political life in postcolonial states. Colonial occupation, while not the only threat to Buddhism prior to 1948, constituted a major challenge to Buddhist life on the island. New protocols for the administration of Buddhist temples, the alienation of temple property, changes to the island's traditional structures of political power, and tacit support for Christian missionizing all worked to undercut structures of support that sustained Buddhist monks and laity. By the nineteenth century, Buddhist monastic institutions had lost much of the political influence and revenue they had once enjoyed; these losses were publically condemned by Buddhist monks and laity, who, by the mid-nineteenth century, had begun to form organizations and political lobbying groups with the goal of reviving Buddhist life on the island. By the 1930s, these Buddhist revivalists regularly asserted their claims in the form of demands for special state protections or rights for Buddhists and Buddhism. They also began mixing demands for legal protections with demands for self-rule, linking certain important strains of the anti-colonial movement in Sri Lanka to the rehabilitation of Buddhism.

If the restoration of Buddhism provided one major type of demand for religious rights in the late-colonial period, a second type was characterized by the demand for “fundamental rights” for all religions. This type of demand also had an anti-colonialist flavor to it. Sri Lanka's independence constitution was not the product of a popular constituent assembly or constitutional congress, as in India. Rather, the document that would become the guiding charter for self-rule in 1948 was definitively influenced by outgoing Crown administrators, who, in missives to the island in the early 1940s, specified a series of conditions and audiences (including British administrators) that the new charter would have to “satisfy” in order to be accepted as the basis for the transfer of power.Footnote ⁸ Although not explicitly stated, it was understood by British legal specialists at the time that, when it came to the protection of citizens' rights, including rights to religious worship, the Crown would look unfavorably on the integration into new constitutions of American-style lists of (fundamental) rights.Footnote ⁹ As one influential British constitution-maker of the period put it, “[An] English lawyer . . . is apt to shy away from [fundamental rights] like a horse from a ghost.”Footnote ¹⁰ Beginning in 1943, a duumvirate consisting of a powerful Sinhalese politician and a British constitutional lawyer began to draft what would become the island's independence constitution, deliberately omitting a bill of rights. In response, several of the island's younger, more nationalist politicians scribed their own shadow constitution, which conspicuously included eight distinct paragraphs of fundamental rights, including “freedom of religion.”

The demand for Buddhist rights and the demand for fundamental religious rights both rejected an assumption implicit in what would become the 1948 Constitution. The 1948 charter implied religious freedom as a naturally occurring state, a kind of de facto condition that one arrived at if one could simply strip away government influences from the religious lives of citizens. Thus religious freedom was to be protected by restricting the actions of politicians. Section 29(2) dictated that Sri Lanka's new parliament “Shall make no law” that will

Here religious rights were negative rights, prohibitions on the actions of parliamentarians so that they did not encroach on religion. As intended by its drafters, Section 29(2) tried to remove religion from governance, so that each would flourish in the absence of the other.

Proponents of Buddhist rights and general fundamental religious rights both rejected this premise that religious freedom was a negative liberty, a naturally occurring condition, provided one could guarantee religions' freedom from intervention by the state. For the advocates of Buddhist rights, the independent state had an obligation to actively intervene in the rehabilitation of the majority religion and to provide a regime of affirmative action that would lead to the repair of Buddhist monasteries, monks, and temples and would restore Buddhism's prestige among the laity. Buddhism, they argued, did not exist in a state of de facto freedom but a state of de facto decay, which was the direct result of four hundred years of colonial damage. These demands were laid out systematically, first in a letter to the island's first prime minster, and later in a report, both of which were produced by the All-Ceylon Buddhist Congress (ACBC), a lay Buddhist activist group that, by the early 1950s, had gained prominence as the island's leading organizational body lobbying for Buddhist interests.Footnote ¹² In these documents, the ACBC elaborated a list of constitutional and statutory provisions that the state ought to integrate into the newly independent legal system to positively improve the condition of Buddhism. These included provisions to help monastic fraternities gain legal recognition as religious organizations and the establishment of a government Buddha Sasana Council that would organize and coordinate state efforts to “extend to Buddhism the same patronage as was extended to it by Sinhalese Rulers of old.”Footnote ¹³

Advocates of fundamental rights, who came from all of the island's religious communities, viewed the arrangement of religious rights in Section 29(2) as expressing far too passive a relationship between the state and the enforcement of religious and civil rights. What was needed, they argued, was a discrete list of rights that would enunciate the state's positive obligations to uphold individual and group freedoms, to enhance religious liberty through government action. In their shadow constitution, religious freedom was defined as follows:

This alternative draft constitution amplified the range of religious liberty by treating religious expression, belief, and practice as positive rights to be guaranteed by the government and by prohibiting all representatives of “the Republic”—not just the legislature—from discriminating on the basis of religion or from limiting the free exercise of religion.

Although these two types of demands for religious rights had their roots in different anti-colonial movements and had their basis in differing assessments of religious freedom, both demands enjoyed a certain degree of popularity among prominent public figures for much of the 1950s and 1960s, expressing as they did widely held sentiments about the nature of religion and the government's ideal relationship to it. Key among public figures was Sri Lanka's third prime minister, S. W. R. D. Bandaranaike, an Oxford-educated lawyer who had deep sympathies both with Buddhist populism and liberal human rights.Footnote ¹⁵ Like many politicians at the time, Bandaranaike presented the reform of religious rights as an anticolonial proposition: to replace the 1948 Constitution was to eliminate from Sri Lanka all traces of colonial influence, insofar as the key drafters' work had been tainted by colonial collaboration. Once in office, he parlayed the two alternative visions of religious rights into two large government initiatives. On the one hand, he convened a Joint Select Committee for the Revision of the Constitution, which he charged with, among other things, generating a constitutional chapter on fundamental rights, including religious rights.Footnote ¹⁶ On the other hand, he appointed a government Buddha Sasana Commission and mandated that it investigate the demands made by the All Ceylon Buddhist Congress for special Buddhist legal privileges.Footnote ¹⁷

Although the Select Committee on the Constitution and the Buddha Sasana Commission both produced a list of recommendations for legal change, Bandaranaike was unable to leverage either in the form of discrete legal initiatives. By the time the reports were completed, Bandaranaike's leadership within his coalition was being challenged; in 1959 he was assassinated. Nevertheless, Bandaranaike's initiatives produced an important milestone in the development of religious rights in Sri Lanka, insofar as it was during his government that the call for fundamental religious rights and the demand for special legal Buddhist prerogatives became mainstream political demands, such that in the 1960s, the agendas of both commissions were taken up by the island's two major political parties, Sri Lankan Freedom Party (SLFP) and the United National Party (UNP). Bandaranaike's widow, Sirimavo Bandaranaike, who took over the leadership of the SLFP in 1960, promised in her first election manifesto that she would pursue fundamental religious rights and Buddhist prerogatives: she would work to create a republican constitution that included a list of fundamental rights, and she would implement the suggestions of the Buddha Sasana Commission.Footnote ¹⁸ She reconfirmed this in the SLFP policy statement from November 1964, but folded the two objectives into one:

Similarly, the UNP, the island's major opposition party, insisted in its election manifesto from 1965,

In 1967 the UNP-led government even reappointed a Joint Select Committee on the Revision of the Constitution to complete the investigations that had begun under Bandaranaike's government, including the drafting of a constitutional chapter on fundamental rights.Footnote ²¹

During the 1950s and 1960s, while the topics of religious rights and religious freedom were increasingly common foci for political discourse, the protections for religion listed in Section 29(2) were not major instruments of litigation.Footnote ²² This fact reflects (perhaps in equal measure) the perceived weakness of Section 29(2) as an instrument for making religious claims and the inability and/or refusal of the courts to use Section 29(2) to prevent the passing of discriminatory laws. During this period, when questions of Buddhism did enter the courts, they did so in the form of disputes between Buddhist monks, generally over succession to the office of chief incumbent of temple or over control of monetary property and assets.Footnote ²³ Tensions between the two views of religious freedom were certainly manifest in politics; however, the relationship between Buddhist protections and general religious rights remained very much in question, subject to negotiation, contest, and debate. Politicians and religious leaders on all sides debated the precise relationship between (proposed) Buddhist prerogatives and (proposed) fundamental rights.Footnote ²⁴ Moreover, and more interestingly, advocates of both visions of religious freedom engaged in heated debates within their own camps regarding precisely what Buddhist rights and fundamental rights should entail, with deep lines of fissure emerging particularly within the Buddhist side. This is not to say that tensions did not exist among religious communities; indeed they did. Yet, the absence of a religious-rights-friendly legal and judicial context meant religious rights and religious freedom were not used in courts as instruments for legitimating or contesting claims about the relative status of Buddhism vis-à-vis other religions or the necessity of equal religious rights vis-à-vis special Buddhist protections.

CONSTITUTIONALIZING RELIGIOUS FREEDOM: THE FIRST REPUBLICAN CONSTITUTION OF 1972

For many Sri Lankans in the late 1960s and early 1970s, implementing a legitimate rule of law and a legitimate scheme of religious rights and freedoms implied the replacement of the island's colonially derived 1948 Constitution with a new, “autochthonous” one, composed by elected officials and consisting of clauses that were drafted exclusively by Sri Lankan politicians. Indeed, there was tremendous public support when the (SLFP-led) coalition government, the United Front, having won a landslide victory in parliamentary elections of 1970, convened the elected parliament as a Constituent Assembly and announced its intent to draft a constitution that would “build a nation ever more strongly conscious of its oneness amidst the diversity imposed on it by history.”Footnote ²⁵ The revision of religious rights was high on the agenda, and by January 1971 the drafting committee had presented to the Constituent Assembly its most succinct statement of religious policy, Draft Basic Resolution Three (DBR 3). It read as follows:

According to DBR 3, the demand for Buddhist rights was to be addressed by placing positive obligations on the state to “protect and foster” Buddhism and by awarding Buddhism a special status, one glossed in the locative idiom, the “rightful place.” At the same time, demands for positive fundamental religious rights were to be acknowledged by including in DBR 5(iv) guarantees that

If the rights for Buddhism were made to echo the election manifestos of the SLFP, the scheme of general religious rights and freedoms was borrowed verbatim from section 18 of the 1966 International Covenant on Civil and Political Rights of the United Nations, to which Sri Lanka was a signatory.

In the minds of the new constitution's lead draftspersons, the intent behind DBR 3 was simple. The resolution sutured together the two dominant demands regarding religious rights emerging from Sri Lanka's citizens: the demand for special rights for Buddhism and the demand for fundamental religious rights. The architect of the Constitution, Colvin R. De Silva, summarized it as follows:

Although it exhibited the silver-tongued confidence of a long-time parliamentarian and senior legal practitioner, De Silva's statement was not cynical political salesmanship. As a declared secularist, criminal lawyer, historian, critic of fundamental rights theory, and prominent member of the anti-colonial Left in Sri Lanka, De Silva was a known critic both of Buddhist rights and fundamental religious rights, and he could not be impugned for his lack of sensitivity to popular demands. Indeed, a review of the drafting documents only confirms his good faith effort to represent and reconcile these positions. De Silva deliberately rejected the more pointed demands that the constitution include a clause requiring that the island's prime minister and heads of the armed forces would be Buddhists. He also conceded that the constitution could not declare Sri Lanka a secular state, on account of the broad support for Buddhist protections among Sri Lankan citizens.

Despite the fact that the Constituent Assembly was popularly elected and despite the fact that the drafting committee calibrated their draft charter to reflect public demands, the debates over the language of DBR 3 and DBR 5(iv) seemed only to evade important questions about the relationship between Buddhist rights and general religious rights and, in particular, to avoid scrupulously those issues that would “unbalance” the equivocal language of DBR 3, by either amplifying Buddhist prerogatives or fundamental rights protections. Despite calls by assembly members for greater clarification regarding the scope and relative priority of Buddhist protections and general religious rights, the imperatives of legal production—namely, the need to appeal to a majority of legislators—prevented serious investigation into the nature of the proposed relationship.

In general, the debates on DBR 3 were focused on three proposed amendments to the clause. Each proposed a particular clarification, which was in turn opposed by members of the United Front, especially De Silva. The opposition UNP insisted that the first part of the resolution be strengthened so as to render plainly the state's commitments to Buddhism. They therefore proposed that DBR 3 be amended as follows:

Adding these words, the UNP leaders argued, would give greater specificity and legal force to the Buddhist prerogatives listed: Buddhism would be further distinguished as not simply one religion out of many similar ones, but as a tradition with a unique historical and institutional legacy. The added words, taken from a treaty signed between the last Buddhist kingdom and the British,Footnote ³⁰ would signal the state's aims of restoring to Buddhism the status that it enjoyed during the ancient kingdoms on the island.

A second proposed amendment came from a Muslim member of the ruling United Front coalition who requested that DBR 3 be disambiguated so that it was clear that Buddhism was not the only religion given recognition by the state:

In this version, Buddhism's special status was modulated by the assertion that Hinduism, Islam, and Christianity also had important roles in national life. Thus, what was emphasized was Buddhism's status as primus inter pares, the most protected in a group of equally protected religious traditions.

The most significant objections, however, came from the largest Tamil party on the island, the Federal Party, who represented Tamil-speaking Hindus and Christians and who, in the context of the Constituent Assembly, claimed to speak for all major Tamil political groups.Footnote ³² For the Federal Party, DBR 3 appeared to be not a balancing of Buddhist priorities with general religious rights, but a privileging of Buddhism plain and simple:

According to this, DBR 3 had a more dubious logic undergirding it. The privileges accorded to Buddhism, the Federal Party argued, were not offset with protections for all religions in DBR 5 (on fundamental rights) because of a deliberate linguistic misfit: DBR 3 gave rights to the country's dominant faith, Buddhism as a religion (matam); however, DBR 5 enumerated rights for individual persons (taṉippaṭṭa maṉitarkaḷukku).Footnote ³⁴ Thus Buddhism could claim legal status, protections and privileges that Hinduism, Islam, and Christianity could not. Therefore the only appropriate amendment to DBR 3 was to rewrite it to make Sri Lanka a “secular” state or—in a more literal translation of the Tamil term used, matacārpaṟṟa—“a state that did not bend towards a particular religion”:

Through the course of debates on these amendments, one can see two antithetical processes at work. On the one hand, members of the Constituent Assembly, particularly opposition politicians, fought hard to disambiguate or strengthen the particular types of religious rights being described in the resolution and to press the question of coherence between Buddhist prerogatives and general religious rights. On the other hand, members of the majority United Front fought hard to avoid any alterations to DBR 3, so as to maintain its ambiguous rhetoric, a rhetoric carefully calibrated by De Silva to appeal to all parts of the ruling coalition (which had a two-thirds majority in the Constituent Assembly) and to as many other opposition parliamentarians as possible (Buddhists and non-Buddhists, religious nationalists and secularists, liberals, Leftists, and others). In this sense, the success of DBR 3 lay in the fact that its language expressed popular demands regarding religion, while holding in abeyance potentially contentious questions about the specific content or relative priority of those demands. In the end, only two small amendments—both of which were suggested at a later, semi-closed committee stage—were integrated: the phrase “religion of the majority of the people” was dropped and the phrase “foremost place” rather than its “rightful place” was selected.

ADDITIONAL CONSTITUTIONAL POLARIZATIONS: THE SECOND REPUBLICAN CONSTITUTION OF 1978

In May 1972, with the ratification of Sri Lanka's First Republican Constitution, Sri Lankans constitutionalized special religious rights for Buddhism and general religious rights for citizens. For some, this seemed a victory: demands for religious freedom that had been gestating for decades were now recognized in the highest law of the land. Although there continued to be frustrations with the shape of that law, and suggestions that its provisions for religion were incoherent or ill conceived, some steps were ventured to lessen the dissatisfaction of those who had wanted stronger Buddhist protections as well as those who demanded stronger fundamental religious rights. The only successful attempt came in 1978 with the redrafting of the country's constitution by the UNP.Footnote ³⁷ Unlike the process of 1970–1972, the 1978 Constitution was not drafted through the mechanism of a Constituent Assembly, but through a group called the Select Committee on the Revision of the Constitution, consisting of nine members.Footnote ³⁸

The changes made to religious rights were small, but pregnant with significance. The 1978 Constitution changed a single word in the Buddhism chapter. In the second clause of the sentence, the word “Buddhism” was replaced with “Buddha Sasana.” As had been pointed out by some of the deputations, the term “Buddha Sasana” referred directly to the language used by Bandaranaike's Buddha Sasana Commission Report and the All Ceylon Buddhist Congress.Footnote ³⁹ Furthermore, the term referred to a much wider range of Buddhist phenomena, not only the teaching and practices introduced by the Buddha, but also monks, temples, relics, temple lands, and lay devotees. In Sinhala, the rewording has another implication: the term usually translated as Buddhism (buddhāgama) is a compound formed from two words, buddha and āgama, and the term āgama connotes religion in a very particular sense: it stresses creed, belief, and doctrine, rather than the larger institutional frame in which religion is practiced, consisting of buildings, organizations, and lands owned by a religious community. It also underscores the comparability of one religious doctrine with another, indirectly referring to the commensurability of Buddhism (buddhāgama), for example, with Hinduism (hindu āgama) and Christianity (kristiyāni āgama).Footnote ⁴⁰ Moreover, when used by itself, the term refers to Christianity: eyā āgame means “that person is a Christian.”Footnote ⁴¹ Thus, using the term buddhasāsana, rather than buddāgama, in the second part of the revision not only widened the range of possible institutions that the government undertakes to “protect and foster” but it also subtly asserted Buddhism's non-commensurability—and, by implication, its preeminence—when compared with other religions.

The 1978 Constitution also strengthened the position of Buddhism in two other ways. Responding to the recommendation of certain monastic deputations and incorporating the suggestions of Bandaranaike's Buddha Sasana Commission, the Select Committee included in the new constitution a provision for the creation of separate monastic courts to adjudicate disputes between Buddhist monks.Footnote ⁴² The Committee on the Revision of the Constitution in 1978 further enhanced the status of the Buddhism chapter by making it an entrenched clause of the constitution that could not be changed without a two-thirds majority in parliament plus a referendum of the people (Article 82). Referring to these measures to further fortify Buddhism, the UNP-led Committee on the Revision of the Constitution of 1978 boasted that the chapter on Buddhism had now been made “inviolable.”Footnote ⁴³

At the same time the 1978 Constitution further buttressed the position of Buddhism in Sri Lanka, it also deepened the reach of fundamental rights and particularly rights to “freedom of thought, conscience and religion.” As a whole, the section on fundamental rights was lengthened and strengthened. A provision for freedom from torture was added and rights to freedom from discrimination and arbitrary arrest were further specified. Regarding enforceability, the 1978 Constitution also stated that the island's Supreme Court would have original jurisdiction over—and hear directly—all cases involving the breach of fundamental rights (Art. 126). Regarding religion, the 1978 Constitution further bolstered the section that guaranteed “every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice” (Article 10). This was done in three ways: “freedom of thought, conscience and religion” was listed first among the fundamental rights, making it, by implication, the most primary; it was given the status of an entrenched clause (like the Buddhism chapter) and was therefore difficult to amend or repeal; and it was made an absolute freedom, not subject to the limitations imposed on other fundamental rights.Footnote ⁴⁴

Ironically, the 1978 Constitution attempted to resolve frustrations over religious rights by further strengthening Buddhist prerogatives and religious rights, adding to their perceived antimony rather than clarifying the links between the two. Since 1978, a number of lawmakers, religious organizations, and lobbyists have proposed further alterations of the Buddhism chapter, which have largely taken the same approach. In 1997 and 2000, the Chandrika Bandaranaike Kumaratunga administration (unsuccessfully) proposed a draft constitution that sought to address both concerns by extending and strengthening the language regarding Buddhism and fundamental rights:

In this proposed change, a whole second paragraph is added to the article, specifying the creation of a Supreme Council of high-ranking Buddhist monks who will advise the government on issues relating to the health of Buddhism in the country. In addition, the language regarding fundamental rights is rendered more explicit in the first paragraph (the section that was Article 9), such that the government is charged with giving “adequate protection” (rather than “assuring” as it was rendered in Article 9) to all religions and “guaranteeing” freedoms to “every person” (rather than every citizen).

Since 1972, Sri Lanka's lawmakers have responded to popular demands for Buddhist prerogatives and general fundamental religious rights by making space for both in the island's constitution. At the same time, for reasons of political expedience, they have left the relationship between the two underdetermined. In the constitutions of 1972 and 1978, as well as the proposed constitution in 2000 (although it was never ratified), lawmakers succeed in entrenching and deepening the legal foundation for Buddhist protections and religious rights in Sri Lanka, while leaving in place a “carefully balanced” ambiguity as to how two commitments ought to coincide.

ARGUING ABOUT RELIGIOUS RIGHTS IN COURT: THE CONVERSION BILL CASE

So what effects have constitutional religious provisions had on the adjudication of disputes in the courts? Since 1972, following the structure of the chapters on Buddhism and fundamental rights, Sri Lankans have increasingly made legal claims about Buddhist prerogatives and religious rights.Footnote ⁴⁶ Looked at in one way, then, constitutional reforms in Sri Lanka have succeeded because they have encouraged citizens to bring street-level religious disputes into the judicial arena. Taking this view, one might interpret as a positive trend the increased frequency of religious rights litigation during periods of increased religious acrimony: greater social tensions give way to greater needs for (assumedly ameliorative) legal activity. Indeed, the highly litigated period since 2000 coincides with a period of significant social and political upheaval on the island resulting from the escalation of the civil war between the Sri Lankan Army and the Tamil Tigers, the growing influence of foreign governments and human rights organizations, and the rapid liberalization and globalization of Sri Lanka's economy. In this context—which was punctuated by the 2004 Boxing Day Tsunami—a number of Buddhist groups on the island became increasingly anxious about perceived threats to Buddhist religious life: they worried about the “cultural” effects of global consumerism and the political power wielded by foreign “Christian” states (such as NorwayFootnote ⁴⁷ and the United States); they voiced concern about the social influence of non-governmental organizations (such as World Vision and the United Nations) on the lives and habits of rural Buddhists; and they feared that Buddhist Sri Lankans were becoming the targets of a concerted conversion campaign by Christian missionaries who have come to the island under the guise of humanitarian aid workers responding to the island's civil war and tsunami.Footnote ⁴⁸

When it comes to religion, however, I propose that the relationship between social strife and legal claims is more complex. Rather than a one-way dynamic of religious tensions giving way to legal action, one finds in Sri Lanka a negative feedback cycle of religious tensions giving way to religious rights litigation which then, recursively, deepens religious tensions. Social strife does indeed lead to legal action. However, recoded in the language of religious rights, popular disputes become more intractable, not less. When placed in the broader history of constitutional law on the island, this means that the very constitutional principles that Sri Lankans designed to arbitrate interreligious conflicts have, in fact, worked to harden divisions between Buddhists and non-Buddhists, and to generate or deepen disagreements over the proper meanings of religious freedom. The bitter irony is that, in many cases, litigants reproduce the very same disputes that constitution-drafters attempted to evade through cautious wording in the 1972 and 1978 constitutions—a kind of constitutional return of the repressed. And just like Sri Lanka's past constitution drafters, the island's contemporary judges routinely refuse to clarify the precise meaning of religious freedom, and the precarious balance between Buddhist prerogatives and rights granted to “all religions.”

To see how this works, to understand the pyrrhic success of religious rights in Sri Lanka, one must look to the micro-mechanics of religion litigation as it unfolds in the island's courts. How do the procedures, languages, and outcomes of religious rights litigation serve to amplify disagreement? In what follows I put aside a more general overview of recent religion casesFootnote ⁴⁹ in favor of identifying how this negative feedback dynamic works in one of Sri Lanka's most prominent recent Supreme Court cases, known popularly as the Forcible Conversion Bill case.

In 2004, in the context of widespread public anxieties (mentioned above) concerning the foreign influences, civil war, and Christian conversions on the island, a Private Member's Bill was introduced to Sri Lanka's parliament with the aim of criminalizing “forcible” conversions from one religion to another. The bill was introduced by the head of the Jathika Hela Urumaya (JHU, or National [Sinhala] Heritage Party), a Sinhala-Buddhist nationalist political party and member of the coalition government consisting almost entirely of Buddhist monks. It drew upon the language of the constitution in order to frame religious conversion both as a violation of the state's special protections to Buddhism and individuals' religious rights. The preamble read:

In the rhetorical architecture of the bill, conversion and proselytizing were framed both as violations of the state's “historic” duties to Buddhism (posited as extending back to the third century BCE) and as violating the state's obligations to uphold fundamental rights to freedom of religious belief and freedom to manifest one's religion.Footnote ⁵¹ Shortly after the bill was introduced to parliament, its constitutionality was challenged before the Sri Lankan Supreme Court by twenty-one separate petitioners almost all of whom were associated with non-Buddhist religious groups or non-governmental human rights organizations.Footnote ⁵² Against each of these petitioners, the JHU and other Buddhist activist organizations put forward Buddhist “intervenient petitioners,” each of whom foregrounded in their affidavits that they were Buddhists who were concerned about the wellbeing of Buddhism.

What is notable about the Supreme Court case was not just the religiously polarized rosters of petitioners for and against the bill, but that in the process of challenging or defending the constitutionality of the JHU bill, litigants on both sides seemed to reify and confirm the essential incompatibility of the two visions of religious freedom suggested by the bill itself. Those who opposed the bill insisted that general religious freedoms should trump Buddhist prerogatives, insofar as equal rights for all religions was not commensurable with special privileges for a single religion. They also insisted that freedom of conscience (expressed in Article 10 of the Constitution) entailed a positive freedom to encounter different religious views, to adopt or modify one's own views, and to prevent one's own “internal” beliefs from being the object of state interrogation. In arguing against those claims, supporters of the Forcible Conversion Bill insisted upon the essential coherence of Buddhist privileges with equal religious rights for non-Buddhists, a coherence deriving not from a balancing of religious prerogatives but from the inherent “tolerance” of Buddhism itself.Footnote ⁵³ They also offered a view of freedom of conscience as a negative freedom, freedom from particular impositions on “sober reflection,” “consideration,” and “free thinking.”Footnote ⁵⁴ In this interpretation of Article 10, freedom of conscience depended upon the “freedom to choose . . . [through] spontaneous volition, to make an informed decision which is not encumbered, subverted or corrupted in any manner whatsoever by external stimulus”; it was, therefore, the duty of the state to make sure that freedom to choose could be “preserved and maintained in its purest and most pristine form.”Footnote ⁵⁵

Although the legal battle over the bill constituted a dispute between certain Sri Lankan Buddhists and certain other parties, the language of legal argument soon projected debates over conversion into universalist terms. While some petitioners commented on the exclusionary politics of the JHU as a political party, most arguments against the bill were framed as protests against the bill's violation of broader abstract principles embodied in Sri Lanka's constitution or liberal rights theory more generally, particularly freedom of religion. Similarly, those who supported the JHU bill framed their support as a defense using (and celebrating) those same principles. There were no illiberal arguments, only competing liberalisms—alternative ways of defining religious freedom, conversion, and conscience. The result of this process of upwards abstraction was the reification of two opposing regimes of truth: the positing of distinct, irreconcilable religious and/or cultural nomoi—Christian/Buddhist, Western/Sri Lankan—which rendered compromise or agreement on any single set of principles impossible. When refracted through the court, historically situated, politically contextualized contests were recoded as global conflicts over non-negotiable rights and universal freedoms.

Those who opposed the bill accused Buddhist interveners and the JHU of failing to understand that, for Christians, the act of evangelism was not secondary to or derivative from belief, but a spontaneous “witnessing” of divine presence. Therefore, to limit proselytizing was to impinge on one's religious belief, not to curtail a secondary manifestation of that belief. In contrast, Buddhist interveners insisted that the “Western” “Christian” perspective failed to grasp the importance and fragility of conscience within the Buddhist view. As lead council for Buddhist interveners explained to me: “For the West, [freedom of conscience] is freedom of choice. [Choices are] just laid out, like a buffet . . . But, for [Buddhists] . . . if I don't want something creeping into my mind, or impregnating into my mind, I should be able to stop it.”Footnote ⁵⁶

The upshot is that the turn to constitutional law—and the “very balanced” language crafted by De Silva—to arbitrate conflicts over the appropriateness of proselytizing accomplished the opposite of what constitutional designers had hoped for and intended. Rather than providing the terms for a rapprochement of views and the gradual reconciling of frictions around a shared commitment to religious freedom, the legalization of religious tensions seemed to further affirm and deepen the assumed lines of conflict between Buddhists and non-Buddhists through a process of reifying opposing notions of Buddhist prerogatives and religious freedom. The process also affirmed and deepened conceptions of religious traditions as fixed, stable, and unchanging. At no point in the course of this court case did lawyers or judges question the reality of Buddhism and Christianity as distinct, internally coherent and naturally opposed communities and religions. Rather, the process further legitimated these cleavages by allowing Christian groups to speak on behalf of “Christianity” and by allowing Buddhist groups to speak on behalf of “Buddhism.” In this sense, what is particularly intriguing about the court case was that in no moment was a single, specific case of “forcible conversion” adduced in court, outside of a few indirect anecdotes taken from newspapers. Through constitutional law, then, popular concerns over conversion gave way to polarized battles of reified worldviews, abstract ideas, and hypothetical circumstances: conversion was translated from a site of historical struggle into a normative problem.

So what did the Sri Lankan Supreme Court do? In its determination on the bill's constitutionality, the three-justice bench dodged the key points of disagreement. The court agreed with both parties on the question of religious rights, admitting that protecting Buddhism was indeed important, but insisting what was crucially at issue was freedom of religion in the form of “freedom of thought and conscience and religion.”Footnote ⁵⁷ The court further insisted that, in principle, converting another forcibly would violate that freedom of conscience by introducing a “fetter” on the “free exercise” of one's mind. However, it also concluded that the measures laid out by the bill to prevent such forcible conversions—particularly its protocols for reporting and laying charges—constituted unconstitutional “restraints” on freedom of conscience and religion. In this way, the court dealt with dispute by resorting to further equivocation: it declared the bill constitutional in spirit, but not in key areas of substance.Footnote ⁵⁸ What is remarkable about the judgment is its studied avoidance of any statement concerning the questions that really mattered with respect to religious freedom and religious rights, most particularly questions about the relative priority of Buddhist protections vis-à-vis fundamental rights as well as any clarification of how freedom of conscience ought to be conceived. Like the members of the Constituent Assembly, the court refused to take steps towards disambiguating the chapters on Buddhism or fundamental rights. This refusal reflects the difficult political context in which the Sri Lankan state and its judiciary found themselves: to assert the priority of Buddhist protections over fundamental rights—or even to admit the necessity of weighing up constitutional duties to Buddhism when considering religious conversion—would be to disenfranchise non-Buddhists, secularists, and liberals on the island, many of whom were important supporters of the government at that time. On the other hand, to assert the priority of fundamental rights over Buddhist privileges would be to alienate certain Buddhist supporters, including the JHU, who had gained significant public support.Footnote ⁵⁹ Interpretations of freedom of conscience became a proxy language for the rival interests of those who favored or opposed the bill: asserted as a negative freedom, freedom of conscience became the rallying cry for groups like the JHU; asserted as positive freedom, it served the bill's opponents. The court carefully sidestepped either interpretation. In the end, by translating religious demands into constitutional language, litigants not only hardened the rigidity of those demands, they translated them into a form which the state refused to arbitrate.