Buddhist Constitutionalism: A Short Prelude to the Constitutional Crisis in Sri Lanka

By DrRoshan de Silva-Wijeyeratne
Griffith Law School

There are some 350 million Buddhist around the world from South and South East Asia to Russia and Western Europe. While debates about Monastic Law in South and Southeast Asia have dominated Buddhist Studies ever since Max Weber’s early contribution, only recently have scholars started to inquire into what has been classified as ‘Buddhist Constitutionalism.’ The latter marks out as a focus of study two distinct themes. On the one hand it has opened up inquiries in respect of jurisdictions such as Sri Lanka, Thailand, and Burma (and Bhutan to a lesser extent) and the manner in which Kings and Monks contested for control over land, taxes and autonomy. The emergence of monastic landlordism provoked the emergence of alternatives sites of power to that of the King, monasteries and monks finding themselves in a position to subvert the authority of Kings and Kings in turn trying to re-assert control over dissident monasteries in the name of centralised power. Here, ‘Buddhist Constitutionalism’ as a strategy represents the assertion of hierarchical State control. The consequence of this Statist approach to the Sangha (the collective body of monks) has been a re-structuring of the relationship between monks and the State. On the other hand ‘Buddhist Constitutionalism’ has opened up a space for a critical survey of the tensions generated by constitutional orders (in Sri Lanka for example) that afford some kind of constitutional protection to Buddhism, but usually in a manner that combines this protection with an uncomfortable articulation of the principles of liberal constitutionalism. In this context what we see is the mobilisation of such constitutional protections by Buddhist interests groups in the name often of a highly fetishized and ossified Buddhism/Buddhist practice in both Sri Lanka and Burma in particular. The deleterious impact of this form of Buddhist activist litigation on ethno-religious minorities has been well documented with regard to Sri Lanka, as has the intra-Buddhist motivated litigation in Thailand for example with regard to the Dhammakaya sect in Bangkok.

My work has sought to present the latter account of ‘Buddhist Constitutionalism’, in a way that sets up our contemporary understanding of ‘Buddhist Constitutionalism’ by placing it in the context of a genealogy that looks at the nature of the State at the time of the Buddha. The Buddha was born at a historical juncture when monarchy and the political order were disintegrating and the Pāli Canon suggests that the Buddha did not expect a world sans war. In the Vedic or Hindu legal world in which the Buddha found himself, the ruler’s (kshatriya’s) power to rule (kshatra) involved protection of his subjects against outside aggression. This gave the ruler privileges vis-à-vis his subjects, such as the power to monitor what they did, punish them if necessary and tax them. These were the ingredients of rājadharma, the judicial power of the king, well known from later texts such as KautilÄ«ya’s Arthāsastra, a text that is analogous to Machiavelli’s account of the purpose of princely rule. The performative logic or telos of Buddhist kingship is fundamentally ontological, but in the encounter with (colonial) modernity the logic of Buddhist kingship is re-imagined as motivated by epistemological concerns (about what the world ought to look like). What my work suggests is that ‘Buddhist Constitutionalism’ in its colonial but particularly post-colonial rendering (in Sri Lanka and Burma for example) must be understood as motivated by similarly epistemological concerns, concerns that appear to be fundamentally alien to classical Buddhist kingship.

My concern with Buddhist legal history (what for some is a contradiction in terms as many mistakenly associate Buddhism with a tradition of thought that has little to say about this world, the State, politics or the actualisation of power) runs in parallel with an on-going engagement with South Asian legal and political history — on aside Buddhist monks were adept at developing forms of legal contracts that encompassed what we might today call building management. In the South and Southeast Asian context one cannot speak of political or legal forms in absence of a relation to religion and religiosity. While European and particularly British colonial rule (either in the form of the British East India Company or more formal types of Crown colony rule) shaped the nature of meaning that indigenous religious forms such as Hinduism, Buddhism or Islam generated, the legal politics that ensued in the late colonial and post-colonial periods was very much the consequence of elite mobilisation of mass movements. For decades these have played out in the form of Hindutva or Buddhist extremist agency in India and Sri Lanka respectively — one only has to note the BJP’s obsession with Sanskritising Mughal/Persian place names in India in order to be reminded of the neo-fascist telos of Hindutva nationalism. Ironically while the BJP has an explicit genealogy in the Rashtriya Swayamsevak Sangh (RSS) founded in the 1920s, it is useful to remember that Gandhi had himself flirted with the RSS before the latter broke with Gandhi on the question of political corporation with Indian Muslism leaders. We must not also forget Pakistan where the legal legacy of British Orientalist scholarship on Islam and Islamic Law has created the conditions for the legal politics of Islamic fundamentalism in contemporary Pakistan. In Sri Lanka hope of progressive legal and constitutional change has recently been dashed by the coup engineered by President Sirisena and the Mahinda Rajapakse. Below I briefly summarise the latest constitutional crisis in Sri Lanka, a jurisdiction that has forgotten an older genealogy in Buddhist political and legal thought.

[1]In 2015, PRESIDENT SIRISENA came to power in an election in which he and his allies fashioned themselves as firmly anti-Rajapakse, offering an alternative to the murderous rage that coursed through the Rajapakse cabal, whichcontrolled the machinery of the state since Mahinda Rajapakse first won election as President in 2005.

While President Rajapakse’s Sinhalese populism was ground on the anvil of the war against theLiberation Tigers of Tamil Eelam (LTTE), what proceeded after the defeat of the LTTE was a continuance of the same rhetorical and real violence that had become normalised in the final phase of the war against the LTTE. When Sirisena broke from Rajapakse in late 2014 and announced he would challenge him for the presidency, he galvanised both liberal and progressive Left opinion– not just among the Sinhalese majority, but also critically among the Tamil minority who had battled the daily humiliation directed at them by a hyper-authoritarian State that saw enemies everywhere.

Maybe progressives were naïve in supporting Sirisena (appearing both genteel and mild-mannered) who, on the face of things, promised democratic revival (contra the Rajapakses who were pursuing a classically patrimonial state strategy) and all that was intrinsic to such a revival. He also promised respect for the rule of law, an end to political violence directed at opponents, and, in the context of a post-civil-war society, an undertaking to the Tamil leadership that constitutional reform and, critically, the abolition of the executive presidency would be priorities.

It was an agenda that secured Sirisena just over 51 per cent of the popular vote and an overwhelming majority of the ethnic and religious minority vote.

However, once in power, neither Sirisena nor the newly-appointed Prime Minister (from the opposition United National Party) were able to forge a relationship based on trust. Constitutional reform beyond the passage of the 19th Amendment to the Constitution did not prove possible, anti-Muslim rhetoric fuelled riots in both the East Coast and in Kandy. This all seemed like deja vu– had Sri Lanka not been here before?

In the 1990s and early noughties, President Chandrika Bandaranaike-Kumaratunga promised so much, delivered so little and, arguably, created the conditions in which the extreme Sinhalese nationalism patronised by the Rajapakses could thrive. Progressives in Sri Lanka have thus been here before.

The ostensible reason for President Sirisena dismissing Prime Minister Wickremesinghe was an alleged assassination plot against the President, which presented Wickremesinghe as the chief conspirator. No actual evidence was presented by the chief accuser, Nalaka de Silva, who has himself been arrested under the Prevention of Terrorism Act. It may be as the respected political commentator Tisaranee Gunasekara has observed, that such arrests will be the primary tactic employed by the newly-appointed Prime Minister Mahinda Rajapakse and his cabal to create a parliamentary majority for the new government – a government led by a Prime Minister thus far only recognised by China; note that New Delhi has so far withheld recognition, the Hindu nationalist government led by Narendra Modi reluctant to play along with Sirisena’s political maneuvering.

What is at stake in Sirisena’s unconstitutional move is the future of democratic/constitutional process in Sri Lanka. I say this with a deep sense of cynicism as much of Sri Lanka’s post-colonial history is mired in the triumph of undemocratic and anti-democratic processes, particularly since the advent of the Second Republican Constitution in 1978. The centralisation of power in the hands of an executive president neutered alternative sites of power.

What the 19th Amendment to the Constitution did was address one instance of the concentration of power in the President vis-à-vis the dismissal of the Prime Minister. The Amendment in question specifies a mechanism by which the Prime Minister ceases to hold office and will be familiar to anyone versed in British/Commonwealth constitutional conventions. The three ways the Prime Minister can cease to hold office are by death, resignation, by ceasing to be a member of parliament, or if the government lost a motion of confidence in parliament.

The Prime Minister survived a motion of no-confidence in April 2018 and it is clear that the President prorogued parliament subsequent to dismissing Wickremesinghe on 26 October with one purpose in mind – to avoid the spectacle of Wickremesinghe winning a motion of confidence in parliament. As yet, new Prime Minister, Mahinda Rajapakse has not had his majority tested in Parliament, which remains prorogued. One can only assume that this strategy was worked out in advance by both President Sirisena and Mahinda Rajapakse in order that these unlikely allies consolidate their control over State institutions, and the armed forces in particular, before having to align with constitutional and parliamentary processes.

Ostensibly, history is repeating itself; constitutional niceties in Sri Lanka have often been observed in the breach. Unique to the current crisis is the dismissal of a Prime Minister in a manner that prima facie violates the 19th Amendment to the Constitution. The return of Mahinda Rajapakse and the siting of his brother, Gotabhaya Rajapaksa (who crafted the violence of the State against civil society actors following the end of the war in 2009), with the Sinhalese Buddhist nationalist monk Ittakande Saddhatissa, portend ill for the future. That Sirisena would seek to foist on the Sri Lankan public as Prime Minister an individual who embodies all that is extra-parliamentary and anti-constitutional reveals something about Sirisena that has surprised many progressives on the liberal-Left.

While parliament is set to convene on 14 November, in the meantime the crisis deepens. The actuality of real violence by both opposing factions to this constitutional crisis grows more likely. This is a conflict within the dominant Sinhalese social formation and, as yet, has not directly impacted on the Tamil minority, but if by some chance the Rajapakse faction wins either in the street or in Parliament, it will send shockwaves through, not just progressive forces among the Sinhalese, but also among the Tamils. It has all the potential to radicalise Tamil politics as well, which in the aftermath of the defeat of the LTTE, placed a significant burden on the constitutional Tamil nationalists of the Tamil National Alliance.

The international community needs to send a message that parliamentary and constitutional processes need to be abided by. Civil society groups and religious leaders are also making this point. But a crisis, once initiated, can have unintended consequences and it is these that the Rajapakses will hope to capitalise on.

**This part of the article was published on the 14th of November 2018 in Independent Australia and can be found here (https://independentaustralia.net/politics/politics-display/sri-lankas-constitutional-coup-and-a-deepening-crisis-,12095).