Environment One: General Laws Governing Religion

Sri Lanka's legal system contains a number of constitutional provisions, statutes, ordinances, and policies that are designed to protect the identities, activities, and properties of “religious” individuals and groups. These general laws were in some cases designed and ratified after independence in 1948 and in some cases designed during the colonial era. Yet for the most part their drafters espoused similar goals of preserving religious freedom, eliminating religious discrimination, and minimizing religious violence. These general laws, which purport to be neutral on the topic of religion, form the first and most visible environment of law for Muslims in Sri Lanka today.

In the Kapuwatta Mosque case, these general laws governing religion were initially foregrounded because the mosque's trustees framed their grievances largely in terms of broad, constitutional, religious rights. Among other claims, the petitioners argued that forced silence violated three fundamental religious rights: the right to “freedom of thought, conscience and religion” (art. 10), their rights to be free from discrimination the grounds of religion (art. 12[2]), and, most obviously, their right to “freedom, either by [oneself] or in association with others, and either in public or in private, to manifest [one's] religion or belief in worship, observance, practice and teaching” (art. 14[1][e]).

The trustees' decision to frame their grievances in terms of fundamental constitutional rights reflected a number of considerations. On the one hand, the decision clearly responds to the nature of the dispute and the fact that the ASP was a public officer. Sri Lanka's constitution positions fundamental rights as limits on the actions of the state (art. 17 and art. 126). For the trustees, the ASP was an obvious state agent whose actions ought to conform with fundamental rights guarantees contained in the island's constitution. On the other hand, the trustees and their lawyers also probably had a more pragmatic rationale in mind when they crafted their claims in terms of constitutional, fundamental rights. According to Sri Lanka's current constitution, which was enacted in 1978, all citizens are entitled to petition the Supreme Court directly if their fundamental rights have been infringed (or are likely to be infringed) by “executive or administrative action” of the Sri Lankan government (art. 17 and art. 126). Therefore, by framing their grievances as violations of fundamental rights, the trustees secured a hearing directly before the island's apical court, and, in this case, before a bench that included the island's Chief Justice.Footnote ² For the trustees, gaining leave to proceed for the case was itself something of a success. Not only did it significantly speed up the process of judicial action (no time wasted by appealing), it also gave added publicity to the trustees' situation on account of Sri Lanka's widespread Supreme Court reporting in newspapers. Moreover, because it was a fundamental rights petition and it related to state action, the case came to implicate or involve a number of high-profile state officers as respondents: the officer in charge of the Weligama Police Station, the Assistant Secretary of Police in Weligama, the Inspector General of Police, the Deputy Inspector General of Police in Galle (the nearest urban center), and, as required by law, the Attorney General (art. 134[1]).

Very quickly, the implications of this case extended beyond the bounds of events in Weligama and came to encompass broader questions about the practice of religion in public and the use of amplified sound equipment in religious buildings throughout the island. As interpreted by the Supreme Court, the case was about both religious freedom and religious “noise pollution.” The bench granted leave to a number of additional respondents to intervene in the case, as parties who were interested in limiting the sonic footprint of religious practices: these included the Environmental Foundation Limited, a private environmental NGO; Senaka Weeraratne, a lawyer representing citizens affected by noise pollution; and then-Minister of Environmental and Natural Resources Champika Ranawaka and his secretary.

While the initial grievances related to the alleged prejudice of a particular Assistant Secretary of Police, these additional respondents raised other issues. In particular, they argued that, while the state had a duty to preserve religious rights, it also had a duty to protect against “public nuisance” in the form of excessively loud religious performances. These arguments also had a constitutional basis. According to Sri Lanka's constitution, fundamental rights to nondiscrimination on the basis of religion (art. 12[2]) and to “manifest” one's religion (art. 14[1][e]) are subject to restrictions in the interests of “national security, public order, and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society” (art. 15[7]). It was these constitutional restrictions to which the intervening petitioners appealed in supporting the power of the police to limit the use of loudspeakers. The Environmental Foundation Limited drafted reports and tendered submissions that insisted that religion-related noise pollution in Galle, Matara, Kurunegala, and Colombo constituted a serious “public health” problem for inhabitants of those cities (Environmental Foundation Limited 2008). The lawyer for affected citizens, Senaka Weeraratne, pointed out that the amplification of Muslim calls to prayer constituted a threat to public order insofar as it disturbed and caused “unnecessary hardship” to local residents, “the majority of whom belong to other religious faiths.” Moreover, he pointed out, the area also contained a number of Christian churches, a Catholic convent, as well as Hindu and Buddhist temples (Supreme Court of Sri Lanka 2007). An imminent threat to public order was, in fact, confirmed by a report submitted by the Weligama Police, which found that the Kapuwatta Mosque's calls to prayer were leading to growing religious tensions in the area (a point to which I will return below).

These arguments for the protection of “public order” and “public health” implicated not only restrictions on fundamental rights in the constitution, but also provisions in the island's Penal Code. In particular, interveners referred to section 261, which prohibited “public nuisance … which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity.” That is, interveners argued that restrictions on amplified sound not only cohered with constitutional limits on religious rights, they also appeared legitimate with reference to the crime of public nuisance.

In setting demands for religious rights against demands for the protection of public order and public health, the Kapuwatta Mosque case offered an opportunity to lawyers, journalists, and other commentators to reflect broadly on the role of the state in regulating religious life. The arguments about mosque loudspeakers contained implicit arguments about the proper role of the Sri Lankan government in regulating the activities of religious communities. Although not addressed prominently in written submissions, the case called attention to questions such as: Is Sri Lanka a secular state? And, if so, how should Sri Lankan secularism balance what appeared to be competing “secular” imperatives, such as protecting the autonomy and freedoms of religious individuals and groups, protecting the rights of the general public, and preserving the aural neutrality of public spaces on the island?

In provoking these questions, the Kapuwatta Mosque case also cast a light on the many other areas of law that relate to the regulation of religion on the island. In addition to specifying the crime of “public nuisance,” Sri Lanka's Penal Code also contains entire sections that relate directly to religion. In chapter 15, “Offenses Relating to Religion”—a section that survives virtually intact from the original colonial Penal Code Ordinance No. 2 of 1883—the current Sri Lankan Penal Code includes prohibitions against: injuring or defiling a place of worship with the “intention of thereby insulting” that religion (290); voluntarily disturbing a religious ceremony (291); deliberately wounding the religious feelings of a person with words, sounds, or gestures (291A); maliciously insulting the religious beliefs of another group (291B); and trespassing on burial places in order to offend others (292). The contemporary Sri Lankan state also regulates religion according to laws of general application in the fields of education (Education Act No. 5 of 1951), publishing (Profane Publications Act No. 41 of 1958), prisons (Prisons Act No. 10 of 1948), public performances (Public Performances Act No. 40 of 1961), and other arenas of life. For instance, part IV of the Sri Lankan Education Act makes certain provisions for religious instruction in state-administered schools. Generally speaking, the law specifies that students must be instructed in their own religion, provided that a child's parents consent to the instruction and that there are at least fifteen pupils of that religion in a given school. The student's religion is defined as the religion of his or her parents; where the parents' religions are not the same, it is the father's religion that counts. Muslims attending schools with fewer than fifteen co-religionists may be required either to take instruction in another religion (most likely Buddhism) or to opt out completely from religion classes.

In this first environment of law, that of formally neutral and generally applicable laws relating to “religion,” the facts in the Kapuwatta Mosque were treated by legal actors as specific instances of a more general category: debates over the activities of Muslims in Weligama were framed as debates about the activities of religion in the public sphere. Through this lens, mosque trustees appeared not as specific religious adherents demanding that particular practices be respected, but as representatives of the broader genus of “religion.” In this frame, the practices and needs of Muslims were assumed to be analogous to and isomorphic with Buddhists, Hindus, Christians, and all other “religious” individuals.

This mode of conceiving and engaging with Islam has been visible at the level of state administration and bureaucratic policy for the last four decades. Since the 1970s, the Sri Lankan government has represented and responded to the needs of the island's religious communities, including the Muslim community, through parallel departments and ministries for Muslim, Christian, Buddhist, and Hindu “affairs.” At the present moment, these offices are organized as distinct departments under a central ministry.Footnote ³ The offices of religion were not all implemented simultaneously. Rather, their process of coming into being corresponds chronologically with the size of their populations: a Department of Buddhist Affairs was created first in 1979,Footnote ⁴ followed closely after by a Department of Hindu Religious Affairs, followed then by a Department of Muslim Religious and Cultural Affairs in 1982, and followed much later by a Department of Christian Affairs in 1999. Today, while each department has a considerably different budget and staff—Buddhist Affairs having the most resources—the directors of these departments continue to understand themselves as mediating between the government and their respective religious communities.

This digression into the administrative oversight of religious life casts into further relief the first environment of law in which the Kapuwatta case took place. In this environment—expressed in constitutional fundamental rights, penal code provisions, statutes of general application, and bureaucratic administration—the Kapuwatta Mosque trustees' claims appear as an instance of generic religious claims, the persuasiveness of which depends upon the trustees' identities as religious agents who represent a religious institution. Analyzed in this particular legal environment, the ASP's refusal to grant the loudspeaker permit was interpretable as mainly a threat to religion and the generic religious rights of particular citizens. From this perspective, the most important actor in this case would appear to be the second respondent, the Assistant Superintendent of Police, the man who refused to grant the trustees a permit. The appropriate balance between religious rights and state interests hinged on the nature of his actions: Were his refusals motivated by anti-religious animus? Was he discriminating against a religious minority?

Environment Two: Special Laws and Administrative Bodies for Muslims

As the Kapuwatta case gained nation-wide attention, many journalists, observers, and even some legal experts involved in the case interpreted the affair in light of two commonly held assumptions: first, that religious conflicts generally arise between people of different religious backgrounds; and second, that in certain places, Buddhist public officials might be prejudiced against religious minorities. In fact, in the Kapuwatta case these assumptions were misleading. As it turned out, all the major players in the case identified as Muslims. The Assistant Superintendent of Police was not an anti-religious autocrat or anti-Muslim chauvinist; he was a Muslim himself. This fact took many observers outside of Weligama by surprise. Contrary to expectations, the ASP's actions did not reflect some kind of anti-Muslim agenda. According to his affidavits, the ASP refused the loudspeaker permit on account of several noise pollution complaints, most of which were from another nearby mosque. It appeared that complaints against the amplification of prayers by the Kapuwatta Mohideen Jumma Mosque had been lodged primarily by the trustees of the Jamiul Rahman Mosque,Footnote ⁵ and complaints about the Jamiul Rahman Mosque had been lodged by representatives of the Kapuwatta Mosque. Tensions between the mosques had resulted in an upward escalation of claims and what appeared to be a steadily growing noise war between competing amplifiers.

Instead of a fight between a united Muslim community and a religiously biased police force, the Kapuwatta case appeared to stem from a conflict among different Muslim groups, each with its own ideas about proper standards of Islamic belief and practice.Footnote ⁶ Most of those who attended the Kapuwatta Mosque had strong links with a particular Sufi order, the Rifai. The mosque even contained a tomb (ziyāram) for a particular Rifai saint called Yusuf Maulana. Those who frequented the Kapuwatta Mosque practiced a type of Islam similar to that of many Sufi mosques around Sri Lanka, one that blended standard Sunni injunctions (e.g., to charity, daily prayer, dietary restrictions, etc.) with more mystical practices, including veneration of saints' tombs, celebration of annual saints' festivals (kanthuri), and ecstatic performances involving the recitation of divine names (zikr) (de Munck Reference De Munck, Bartholomeusz and de Silva1998; McGilvray Reference Mcgilvray, Ahmad and Reifeld2004, Reference Mcgilvray2011).

Prior to being refused a permit, the Kapuwatta Mosque had been amplifying its prayers and preaching in Weligama through four horns (one for each direction). One trustee described the volume of the sound as loud enough for local Muslim women, who were prohibited from attending the mosque, to listen from their homes. At some point, the Kapuwatta Mosque's amplifiers came to be challenged, aurally, by the amplifiers at the newer Jamiul Rahman Mosque, which had eight horns instead of four (two for each direction). According to the same Kapuwatta trustee, the sermons and preaching coming from the Jamiul Rahman Mosque's speakers included not only prayers, but also invectives against the Sufi practices at the Kapuwatta Mosque.

In contrast to the Kapuwatta Mosque, the newer Jamiul Rahman Mosque observed a stricter, reformist version of Islam, which has started to gain ground on the island over the last three decades. Many in Sri Lanka describe this strand of Islam as tawhid, an Arabic term that refers to the one-ness of Allah, but which in Sri Lanka has come to connote the austere type of Islam practiced by independent reformist groups, one that seeks to “purify” the practices of Sri Lankan Muslims. These groups share several characteristics: they underscore the authority of Arabic texts (Qur'an, Hadith) as interpreted by a global Muslim community (ummah) whose proper center is in the Middle East and North Africa; they emphasize the significance of pious day-to-day comportment (e.g., how one dresses, associates with others, and conducts one's business affairs); and, importantly for this case, they reject many of the long-standing Sufi practices in Sri Lanka, which they view as heterodox or polytheistic (including many of the practices undertaken at the Kapuwatta Mosque). In this way, they overlap with other orthodox revivalist movements on the island, such as the Tabligh Jamaat, Jamat-i-Islamiya, and new piety movements like al Muslimaat (Haniffa Reference Haniffa2008; Hasbullah and Korf Reference Hasbullah and Korf2009; Klem Reference Klem2011).

While reformist and Sufi Islam have influenced and (in some cases) blended with each other, since the 1970s these two strands of Muslim religiosity—often referred to as “reformist” and “customary,”Footnote ⁷ respectively—have been increasingly coming into conflict, as each have become larger and more influential. Islamic reformism has gained momentum due to a number of factors: the marginalization of Muslims in Sri Lankan politics; the growing availability of global Islamic electronic media; large numbers of Sri Lankans serving as guest workers in places like Saudi Arabia, the United Arab Emirates, and Qatar (where reform movements are common); and an increasing number of Muslims who are training at overseas madrasas and Islamic colleges such as Al Azhar in Egypt (Ali Reference Ali2009; Imtiyaz Reference Imtiyaz2009). Sufi groups have had a revival too, the causes of which are harder to pin down, but growth in these groups may be a counter-reaction to the spread of Islamic reformism (McGilvray Reference Mcgilvray2008, Reference Mcgilvray2011). As it bears on the Kapuwatta case, the important thing to consider is that it was this type of reformist-customary conflict, rather than Muslim-Buddhist conflict, that gave rise to legal action.Footnote ⁸

It was not just observers who were caught off guard by the dispute's intrareligious rather than interreligious origins. Sri Lankan legal structures, in general, have difficulties cognizing differences among the island's Muslims. Despite variations in religious practice (as seen above), language,Footnote ⁹ geography,Footnote ¹⁰ and ethnicity,Footnote ¹¹ Sri Lankan law has tended to present Muslims as a singular religious-cum-ethnic bloc. The origins of this date back to 1806, when the British colonial government in Ceylon enacted the “Special Laws Concerning Maurs or Mahomedans,” a code of Muslim personal law that purported to be a compendia of the customary laws used by Muslims living in the Province of Colombo. In actuality, it was a translation of a 1770 code implemented by the previous Dutch colonial administration, a code that, although it had been given nominal approval by selected Muslim leaders in Colombo, had been crafted not in Sri Lanka, but in Batavia (Mahroof Reference Mahroof1987). Nor was the diversity of Sri Lanka's Muslims considered seriously when the application of that code was extended to the entire island in 1852. Regional, cultural, or even jurisprudential (fikh) differences among practitioners of Islam were overwritten in the language of the 1806 Code, which presented itself as a quasi-statutory collection of rules of inheritance, marriage, and divorce for all Muslims. The imagined uniformity of Muslims as a religious community and as a “race” was reinforced in 1889 when the British colonial government appointed a single member to represent Muslim interests in the Ceylon Legislative Council alongside five other members, each of whom represented the interests of another racially determined community—Kandyan Sinhalese, low-country Sinhalese, Tamil, Burgher, and European (Rogers Reference Rogers2004).

Today Sri Lankan Muslims, such as the trustees of the Kapuwatta Mosque, have inherited the colonial legacy of Muslim personal laws, in that a variety of domains of Muslim life are governed by distinct, formalized, written codes of law, which are recognized and enforced by the Sri Lankan state. The subjects originally governed by the 1806 Code are now embodied in three different statutes: the Muslim Intestate Succession Ordinance (No. 10 of 1931), the Muslim Marriage and Divorce Act (No. 13 of 1951, last amended 1975), and the Muslim Mosques and Charitable Trusts or Wakfs Act (No. 51 of 1956). The first statute, a short one, specifies that Muslim inheritance and property law will apply to all cases in which a Muslim person dies without having written a will. The second outlines the specific rules for contracting and registering marriages, initiating and arbitrating divorces, dealing with maintenance payments and kaikuli (“hand gifts” given by the parents of the bride to the couple as a dowry), and appealing and challenging decisions.Footnote ¹² The third statute lays out rules relating to the maintenance, administration, and management of donations to mosques and Muslim religious charities (wakfs) and the resolution of disputes related to those issues.

If one considers the inter-mosque dispute in Weligama in light of these statutes, one gains further insight into another possible reason behind the Kapuwatta trustees' choice to turn to constitutional law rather than Muslim forms of religio-legal authority. In addition to formalizing a regime of Muslim law in matters of inheritance, marriage, divorce, and charitable endowments, the statutes also empower new offices and positions of Muslim authority—authority that has the official recognition and backing of the Sri Lankan state.

The Muslim Marriage and Divorce Act (No. 13 of 1951, last amended 1975) provides for the creation of a network of local Qazi—judges—with a Colombo-based appeals body called the Board of Qazis. While there are no special requirements for becoming a Qazi other than being “a male Muslim of good character and position and of suitable attainments to be a Qazi,” Qazis tend to be senior, well-respected persons within a given community. Qazis are appointed by the Judicial Service Commission to serve in all parts of Sri Lanka. Despite the longer history of Qazis as general judges in Muslim societies around the world, in Sri Lanka Qazis have a very limited ambit of power. Their judgments relate only to matrimonial affairs and not to broader disputes within the Muslim community, such as those in Weligama (Ameen Reference Ameen2000).

Similar to the creation of Qazis, the Muslim Mosques and Charitable Trusts Act provides for the creation of a Wakfs Board (seven members plus a director) and related officers. The functions of the Wakfs Board are to register mosques, to confirm the appointment of mosque trustees, to oversee the conduct of mosque trustees, to audit the financial affairs and property of the mosques, and (through an appointed Wakfs Tribunal) to hear and resolve grievances made by Muslims against mosque trustees. Notably, the Wakfs Board maintains the power to authorize an investigation into the conduct of trustees of mosques and to remove or suspend those trustees (section 29). However, the Weligama dispute did not fall clearly within the jurisdiction of the Wakfs Board or the Wakfs Tribunal procedures because it was a dispute among trustees of different mosques rather than a dispute among trustees and/or members (the jamaath) of a single mosque.

The infrastructure of Muslim law in Sri Lanka is considerable, as are the accompanying bodies of state-recognized Muslim authority. Aside from the Wakfs Board, the Qazi courts, and Board of Qazis, the Department of Muslim Affairs (under whose umbrella the Wakfs Board now sits) has direct oversight over the content and structure of Arabic and Islamic colleges; the training of Muslim teachers in public schools; the registration of Muslim mosques, scholars, welfare organizations, and charities; the administration of “national level” Muslim ceremonies (including the Prophet's birthday); the organization of Hajj pilgrimages; and the granting of merit scholarships to Muslim students.Footnote ¹³ The department also advises on the creation of Muslim-interest legislation. When I spoke to the director of the department in 2008, he was in the process of designing a Halal Act to help regulate the handling of animals and the procedures of Halal certification (a matter to which I will return below).

Nevertheless, despite this broad Muslim legal and governmental-administrative infrastructure, the relationships among Muslim mosques and communities in Sri Lanka are not governed by clear, universally accepted hierarchies of authority, such as those seen among the island's Catholics or Anglicans. Muslim religious leadership in Sri Lanka is highly diversified, being established by way of different traditions of Islam; different idioms of piety; and different links to local, national, and international religious bodies. Religious virtuosity may be embodied in a variety of leaders—imams (mosque prayer leaders), bawas/faqirs (Sufi mendicants), sheiks/kalifas (leaders of Sufi orders), maulanas (local leaders, descendants of the Prophet), maulavis (religious teachers), alims (highly educated Muslim scholars), and lebbes/katibs (mosque prayer leaders). Each of these religious figures claims different types of authority based on different types of education and/or religious experience. Some maulavis, for example, gain scholarly credentials through excelling in government schools—perhaps studying Arabic, Islam, Islamic civilization, and Tamil at the advanced certificate level and at a university. Some may gain credibility through studying at a Sri Lankan madrasa (perhaps one endorsed by the National Committee on Madrasa Education) and/or going overseas to study Islam in Pakistan, Indonesia, or the Middle East (Mahroof 1995). Some may gain credentials by virtue of family, specifically by being the son of prominent Muslim leader. Still others may gain their authority from informal study combined with oratorical prowess or, in the case of bawas and kalifas, other forms of ascetic and mystical charisma (McGilvray Reference Mcgilvray2008, 297–304).

Increasingly, middle-class Muslim reformists recognize religious authority as emerging from individual practices of piety and textual study rather than from the traditional prayer leaders, such as lebbes (Haniffa Reference Haniffa2008). The lack of a singular, de facto, island-wide hierarchy of scholars, a self-evident national ulama, has led to the formation of various organizations that attempt to order these diverse strands into something like a de jure Muslim religious establishment that might be able to arbitrate intra-religious disputes, like those seen in the Kapuwatta case. Most prominent among these organizations is the All Celyon Jamiyyathul Ulama (ACJU), a body that was originally conceived in 1924, but was not incorporated by statute until 2000. Although its authority is not universally affirmed, the ACJU remains the most important national body for Muslims (McGilvray Reference Mcgilvray2011, 57). It describes itself as an “apex religious body of Islamic Theologians” and counts approximately 5,000 theologians among its members.Footnote ¹⁴ The ACJU consists of ten distinct subcommittees, including an education committee, a publication committee, a propaganda committee (dedicated to proselytizing, da'wa), an Islamic banking advisory committee, a halal-certification committee, and a thirty-five-member fatwa committee that has issued 160 fatwas over the last eight years.Footnote ¹⁵

As it bears upon the Kapuwatta Mosque case, what is notable about this second legal environment—namely the environment of Muslim law and administrative bodies—are the implicit frictions between the somewhat unified images of Muslim life implied by these structures and the rather diverse (and sometimes fractious) realities of intra-Muslim relations that often exist on the ground. Consistency within Sri Lankan Muslim practices of inheritance, marriage, divorce, and religious trusts is not simply protected by this system of laws, it is generated by it.Footnote ¹⁶ Outside of these domains, few authorities have the capacity to adjudicate among, for instance, reformist and customary Muslims. Moreover, state law itself has a difficult time making sense of intra-Muslim disputes on religious terms insofar as it assumes Muslim-ness as a stable (and indeed jurisdictionally relevant) political-legal category. If, in the first environment of law (that of general constitutional, penal, statutory, etc. law), the claims of Kapuwatta Mosque trustees appeared as a specific iteration of religious claims, in this second environment of law (that of specifically Muslim law) the claims of trustees, to the extent that they could be at all cognizable, might only appear as claims about some presumably single Islamic orthodoxy. That is, even if the dispute had been limited to matrimonial or wakf affairs, the presumptive singularity of the “Muslim” in Muslim law tends to occlude the possibility of multiple competing, legitimate claims of orthopraxy.Footnote ¹⁷ To this extent, then, the initial blindness of journalists, legal experts, and others to this possibility might be read, in part, as the shadow of Muslim law on other domains of Sri Lankan law and life.

Environment Three: The Environment of Buddhism's “Foremost Place”

The shadow of Muslim law in the Kapuwatta case can be seen in the way the Supreme Court evaluated the dispute. Notably absent from the Supreme Court judgment was any reference to those Penal Code provisions which, on second inspection, appear most relevant to the inter-mosque tensions: namely those provisions prohibiting the deliberate “insulting” or “disturbing” of another religion (290, 291) or “maliciously insulting the religious beliefs of another group” (291B). Assuming the ASP had, indeed, harbored a sectarian agenda, such provisions surely would have been worth foregrounding. Yet, to frame the case in these terms would be to both recognize and intervene in intra-Muslim sectarianism—possibilities that seemed foreclosed by the suggestions of singularity in the island's structures of Muslim law. Instead the three-justice bench resolved the case with reference to constitutional and penal law that construed the event simply in terms of generic “religious” actors and actions and clearly bounded, internally unified religious communities. Writing for the court, Chief Justice Sarath Silva argued that what was fundamentally at issue in the case were the asserted rights of the Kapuwatta trustees to manifest their religion in amplified sound (art. 14[1][e] of the constitution) and the rights of the public at large to be equally protected from the “harmful effects of noise pollution” (section 261 of the Penal Code and art. 12[1] of the constitution) (Supreme Court of Sri Lanka 2007). However, in the eyes of the court, there was no real contest. The judgment states:

For the justices, then, the trustees lost on two grounds. Firstly, the Chief Justice insisted that the general “public interest” and concerns of public health, elaborated in both the Penal Code and the constitution, would always trump the demands for special protection for religion. A citizen's religious imperatives never outweighed his or her duty to avoid becoming a public nuisance. Secondly, the paragraph implied that any religion that advocated activities that violated public health or contravened the public interest was not a proper and legitimate religion. This point was illustrated through a consideration of Buddhist monks chanting pirith (Pali stanzas), a common practice in Sri Lanka, and a practice that often takes place at night and uses amplifiers. According to the judgment, the proper chanting of pirith involves no sound amplification:

In the logic of the decision, there could be no conflict between proper religion and public health, by definition, because proper religion would not require or prescribe acts that compromised public health.

The Kapuwatta Mosque determination ended not only with a judgment against the claims of the petitioners, but with a court order designed to address the issue of noise pollution once and for all. Observing the “indecision, disputes, vacillation and on the whole a lack of collective will” on the part of other government authorities to deal with noise, the court issued a number of orders to be enforced by the island's police. The court directed that all amplified noise that caused “annoyance” to people should be considered a public nuisance under Section 261 of the Penal Code. It insisted that no new loudspeaker permits were to be issued for noise emitted between 10:00 p.m. and 6:00 a.m. (although an exception was made for “special” events consented to by local residents). Where permits were issued, the court demanded stricter monitoring of sound levels. In its judgment, then, the court affirmed that when it came to noise it was not religion that mattered but public order and public nuisance. The Kapuwatta trustees were to be considered members of the public first and religious persons second, as were other religious actors who might choose to project the sound of their religious ceremonies.

The Kapuwatta decision was issued on November 9, 2007. While it seemed to give closure to the contest between the Kapuwatta trustees and the ASP, the broader significance of the case was yet to be felt. The ruling and the court orders upset many Buddhists. One object of frustration was the fact that the court had characterized Sri Lanka as a “secular state,” when in fact the constitution actually gives to Buddhism a privileged position in chapter II, article 9: “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the state to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).”

Constitutionally speaking, the relationship between state and religion in Sri Lanka is notably not secular. It is true that “all religions” are assured the fundamental rights to “freedom of thought, conscience and religion” (art. 10) and to “manifest” one's religion alone or with others in “worship, observance, practice or teaching” (art. 14[1][e]). However, for many who read Sri Lanka's constitution, these assurances only modulate the more general principle that the state gives Buddhism a privileged status and special legal protections. Four years previous to the Kapuwatta case, a three-judge bench of the island's Supreme Court had found that one's rights to manifest religion under article 14(1)(e) of the constitution could be curtailed if they appeared to “impair” the state of Buddhism on the island (Supreme Court of Sri Lanka 2003). Moreover, the very public prominence of Buddhist ceremony and symbolism involved in state events such as the opening of parliament indicates that the Sri Lankan state gives some favored status to the majority religion in practice.

It is against this background that one must interpret the events that followed the Kapuwatta Mosque judgment, particularly the furor that ensued from the prosecution of a Buddhist monk under the terms of the court orders regarding amplified noise. On September 1, 2008, citing its orders against emitting noise that causes annoyance, the Supreme Court issued a warrant for the arrest of Ven. Pannala Pannaloka Thero, a Buddhist monk and chief incumbent of the Welikadawatte Temple in Rajagirya, a suburb of Colombo. Ven. Pannaloka was charged with broadcasting pirith chanting before 6:00 a.m. without a permit. When he was taken into custody by police and brought to the Supreme Court to face charges, his remanding became a public spectacle. Present in the courtroom at his bail hearing were approximately one hundred Buddhist monks, who protested Ven. Pannaloka's remanding by refusing to stand up when the justices entered the courtroom. In a face-saving gesture, the Chief Justice asked the monks to leave and reenter the courtroom so that they would be complying with courtroom conventions.Footnote ¹⁸ When monks refused, Pannaloka's motion for bail was declined.

Although he was released three days later, after filing a motion declaring that he never intended to disrespect the court, Ven. Pannaloka's remand and denial of bail sparked broad public outcry among Buddhists in Sri Lanka against the Kapuwatta Mosque judgment and court order. The National Bhikkhu Front issued a statement saying that the court's limits on noise pollution would impinge upon their duties during the upcoming Vassa season (Island 2008). An all-monk political party, the Jathika Hela Urumaya (National Sinhala-Heritage Party), declared that it would seek new legislation that made allowances for religious noise. Another Buddhist monastic organization warned of a concerted protest movement by Buddhist monks (Fazlulhaq Reference Fazlulhaq2008).

When one follows the newspaper reports about the Kapuwatta judgment before and (even more so) after Ven. Pannaloka's remanding, one sees dramatically the way in which a court case that originated as a fundamental rights petition submitted by trustees of a mosque came to be construed in public media primarily as a Buddhist issue. This contrasts strongly with much of the Muslim reaction in the lead up to and aftermath of the decision. Particularly in Tamil-language newspaper reports, one sees the association of the court order with an abridgement of Muslim rights. For instance, in the Tamil daily Cu ṭar oḷi, Rauf Hakim, leader of the Sri Lanka Muslim Congress, insisted that the court order had especially affected Muslims who had been required since the time of the Prophet to announce and respond to the five-times-daily call to prayer (Cuṭar oḷi 2007). In another article in the Tamil daily Vīrakēcari, the issue of banning the use of loudspeakers is portrayed as a proxy contest between the Buddhist nationalists in the government who favored such a ban and minority Muslims who would be most impaired by the legislation (Cahaptīn Reference Cahaptiīn2007). Over the course of the Kapuwatta Mosque case and the life of the court order, one can also see a similar shift in the public image of the Chief Justice: from someone widely portrayed as an ardent Buddhist, Chief Justice Sarath Silva was cast as an opponent of Buddhism on the island after the remanding of Ven. Pannaloka.

In a number of domains, then, one can see the significance of a third environment of law in which Sri Lankan Muslims find themselves. Not only are Sri Lankan Muslims placed within a legal geography characterized by generally applicable laws and special domains of Muslim law, they are also placed within a constitutional context in which questions of protecting Buddhism take a key role. In this context, many general legal questions involving religion and religious rights demonstrate a drift towards becoming perceived as issues relating to Buddhism (Schonthal, forthcoming).

More recently, this third legal context has had even more direct consequences for Muslims. Since 2011, Sri Lanka has seen a rise in nationalist Buddhist groups that identify Sri Lanka's Muslims as a key threat to Buddhism on the island. Groups like the Siṅhala Rāvaya (the Roar of the Sinhalese), the Rāvaṇa Balaya (Ravana's Force), and Bodu Bala Sēnā (the Army of Buddhist Power) have conducted protests and public rallies and have been linked to violence against Muslims. The groups press a diverse number of agenda items that purport to protect the interests of Buddhists. Among other things, they want to end the conversion of Buddhists to Islam and Christianity, introduce preferential quota systems to increase the proportion of Buddhists in educational institutions and public sector jobs, “reclaim” Buddhist sacred sites from the control of non-Buddhists, and alter demographic trends to limit what they see as a dangerously rapid increase in the size of Muslim communities on the island.

The drift towards “Buddhicizing” legal issues (and/or legalizing Buddhist issues) can be seen particularly in the work of the most well-known and vocal group, the Bodu Bala Sēnā (BBS). One of the key leaders of the BBS is the Buddhist monk Ven. Galagoda Aththe Gnanasara Thero, who was one of the leaders of the monks' protest at the Supreme Court described above. Since its formal incorporation in 2012, the BBS has taken on a number of issues related to Muslims and Sri Lankan law. In January 2013, it rallied outside the Sri Lankan Law College, insisting that exams had been fixed to increase the proportion of Muslim students. Not long after, the BBS began a concerted push for the creation of laws banning the public wearing of the niqab. In early 2012, the BBS foregrounded as one of its five main demands the abolition of separate Muslim personal law and the creation of a uniform civil code. The BBS also maintains a “legal aid” section that helps with legal advocacy and legal education for Buddhists.Footnote ¹⁹

The chief executive officer of the BBS, Dilanthe Withanage, a lay person, explained to me that his organization is committed to the creation of a single legal system in Sri Lanka in order to defend against what it sees as a slow creep towards the spread of Shari'a law on the island.Footnote ²⁰ As evidence of this, he pointed to the fact that non-Muslim individuals who contract a marriage under the Muslim Marriage and Divorce Act are required to divorce under the terms of the Act (a fact common to most plural legal-matrimonial regimes, such as in India).

The BBS also points to the growth of halal certification of consumer goods as evidence of the spread of Shari'a and Muslim political influence on the island. In fact, anti-halal has been a key rallying cry for the BBS, the Siṅhala Rāvaya and the Rāvaṇa Balaya, all of whom have organized protests against halal certification. While halal certification has not been regulated by the state (despite discussions in the Department of Muslim Affairs in 2009), the BBS and other Buddhist groups accuse the state of passively standing by while the island-wide Muslim organizations like the ACJU perpetuate what they see as a halal certification industry (Haniffa, forthcoming). They insist that this industry not only benefits Muslims directly (by way of the charge levied for halal certification) but also discriminates against Buddhist businesses and consumers, both of whom are forced into complying with the halal regime because, they say, restaurants and shops prefer to stock halal-certified goods. In this campaign, the BBS has matched condemnations of the halal certification with calls for a religion-blind legal-administrative system. Withanage, speaking for the BBS, offered the example that, at present, the government chooses Sri Lankan Muslims to serve as diplomats in Muslim-majority countries, whereas it ignores candidates' religious affiliations when choosing diplomats to serve in other countries.Footnote ²¹ In the BBS's logic, then, Muslim personal law acts as the thin end of a wedge that leads towards unfair advantages being granted to a minority group.

If Buddhist groups like the BBS advocate for a uniform legal system, they also argue that this uniform system should be based on Buddhist values. According to Withanage, these Buddhist values predominated in the period prior to colonization, when Buddhist kings governed the island. These values include things like protecting the environment, protecting Buddhist archeological sites, and obliging the state to support (and, in some cases, command administrative oversight over) the community of Buddhist monks. One Buddhist-values issue that has found its way dramatically into the public eye has been the call to ban animal slaughter, both in the context of religious ceremonies (mainly Hindu and Muslim ceremonies) and halal abattoirs. Protests and legal action taken against these practices are framed as upholding the Buddhist value of ahimsa or nonviolence.Footnote ²²

It is with reference to this third environment of law, that of Buddhism's foremost place in the constitution, that many legal claims by Muslims and about Muslims are addressed and assessed. Today, when speaking in public, Muslims frequently signal their sensitivity to the broader Buddhist culture and demography of the island. In one recent example, a Muslim maulavi called upon Muslims to refrain from sacrificing animals on the Buddhist full-moon holiday, Poya Day, in order to mark their respect for the “people and culture that we live with” (Daily Mirror 2013). Often these remarks are made in the spirit of tolerance and coexistence, and there has been a long-standing tradition of Muslim political leaders making similar statements (Haniffa Reference Haniffa2007, Reference Haniffa and Welikala2012). Yet, in recent years the tone has at times verged on the apologetic, as if compelled to acknowledge the predominance and preferential status of the majority religion. Political and legal pressures from Buddhist groups like the BBS have surely played a role here. Similar types of political pressure, in fact, led to a change in the name of the ministry that oversees the Department of Muslim Affairs: from the Ministry of Religious Affairs and Moral Upliftment (in 2010) to the Ministry of Buddha Sasana and Religious Affairs.Footnote ²³ Therefore, when it comes to bureaucratic power and legal action, Muslims must remain cognizant of, and at times seemingly deferential towards, the constitutional fact of Buddhism's foremost place—even when they locate their claims within other environments of law. As was seen in the Kapuwatta case, whether or not grievances, claims, and other issues start as “Buddhist” matters, when they hit the public eye, there is frequently a tendency for them to finish that way.

Islam, the State, and Environments of Law

The Kapuwatta Mosque case provides an illuminating frame for thinking about the plural legal subjectivities of Muslims in Sri Lanka. The fact of these three environments means that Sri Lankan Muslims' legal claims and grievances come to be expressed and interpreted in multiple ways. In each environment, different types of claims are legible and persuasive. In the first environment, it is the claims of Muslims as generic religious agents that are legible, and it is generic claims to religious rights that are persuasive. In the second environment, it is the claims of Muslims qua Muslims, members of a distinct and presumptively unified religio-legal community, that are important, and it is claims of Islamic authority and orthodoxy that are persuasive. In the third environment, it is Muslims' status as religious minorities that appear important, and their claims for accommodation from the island's Buddhist majority that are persuasive.

The fact of these multiple legal environments, and the various lexicons and imperatives at work in each, means that Muslim legal identity may appear at times as split, equivocal, self-contesting, or even self-contradictory. When it comes to law, Muslims must express their grievances either as the individual claims of particular religious agents, or as the collective claims made by members of a community, or as the deferential requests of a non-Buddhist minority in a state that gives to Buddhism the “foremost place.” Even if, formally speaking, Muslims have recourse to the same constitutional and statutory protections as other groups, their legal and political agency often remains conditioned, implicitly or explicitly, by these multiple legal environments. Recent tensions between Buddhists and Muslims in Sri Lanka make reference to the fact of Muslims' pluralized legal statuses. Groups like the BBS want to subdue Muslims' claims in the first environment (of general laws), to eliminate their claims in the second environment (of Muslim personal law), and to elevate Buddhist claims in the third environment (of Buddhist constitutional prerogatives).

To some extent, Muslims' locations within these legal environments are similar to those of other religious minorities. Yet, there are not separate systems of Hindu or Christian matrimonial or property law in Sri Lanka, as there are in India.Footnote ²⁴ Comparatively, Sri Lanka's Christians have been far more active in religious rights litigation. This may reflect the fact that Muslims have been more concerned with accommodating themselves to Buddhism's constitutional privileges while also protecting (and not provoking the issue of) their own systems of matrimonial, inheritance, and property law. One might compare this restrained stance towards litigation to the “accommodationist” stance that many scholars see as characterizing Muslims' participation in parliamentary politics over the last fifty years (Ali Reference Ali1986; de Munck Reference De Munck, Bartholomeusz and de Silva1998, 116; Haniffa Reference Haniffa2007; Ismail Reference Ismail and Jeganathan1995).

Since independence, Muslims have, for the most part, calibrated their own political claims so that they do not conflict with legal prerogatives for Buddhism (Haniffa Reference Haniffa and Welikala2012). Yet, it is in reference to the third environment of law—of Buddhism's constitutional protections—that the situation of Sri Lanka's Muslims is increasingly under challenge. A number of small but vocal Buddhist groups want to eliminate formal legal recognition and personal laws for religions other than Buddhism. To the extent that they are successful, Muslims may be pressured to articulate legal agency increasingly as the claims of religious minorities for Buddhist tolerance or the claims of individuals for fundamental rights. The three interlacing environments of law still exist, but one wonders if the balance of influence may be shifting.