1. IDENTITY AND THE SRI LANKAN CONSTITUTION
The democratic transition of January 2015 promised a constitutional moment in Sri Lanka; it was expected to signal the end of ethno-religious violence and the beginning of a new constitutional order. The new government under Maithripala Sirisena and Ranil Wickremesinghe promised accountability and an extensive constitutional reform package, which included power sharing between communities as a major objective. Yet, with the benefit of hindsight, the expectation that this transition would bring radical reform now seems naïve; neither the promise of ending violence nor the promise of a new constitution has been fulfilled.
Ethno-religious violence in Sri Lanka is a chronic problem, and it is sustained without the active support of a particular government. This understanding of violence prompts further reflection – both on the factors that drive such violence and the complex relationship between ethnicity, religion, and the Sri Lankan constitution. Such reflection is likely to reveal that inter-communal violence in Sri Lanka stems from deeply held identities, prejudices, and beliefs that are not dependent on governmental support, and these cannot be transformed through democratic transitions alone. The threat of such violence fundamentally shapes constitutional practice in Sri Lanka, and potentially defines the realm of future constitutional reform.
Identity politics play a pivotal role in the persistence of violence in Sri Lanka. Sri Lankans identify themselves principally along ethnic and religious lines. Official statistics on the Sri Lankan population in Sri Lanka are presented separately on ethnic and religious bases. The Sinhalese make up 74.9 per cent of the population.Footnote 1 The Tamils constitute 15.2 per cent (including 4 per cent termed as ‘Tamils of Indian origin’ based in the estate sector), and the Moors constitute 9.2 per cent of the population.Footnote 2 Over 70 per cent of the population is Buddhist. Hindus, Muslims (ie adherents of Islam), and Christians constitute 12.6 per cent, 9.7 per cent, and 7.6 per cent of the population, respectively.Footnote 3 Yet scholars including Rajesh VenugopalFootnote 4 and David SmockFootnote 5 observe that the line between ethnicity and religion is often blurred in Sri Lanka because ethnicity and religion closely overlap.Footnote 6 In this context, a conception of ‘ethno-religious’ identity has emerged in Sri Lanka as distinct from purely ‘ethnic’ or ‘religious’ identity. These identity groups include ‘Sinhala-Buddhists’, ‘Muslims’ (mostly composed of Moors who adhere to Islam), and ‘Hindus’ (mostly composed of ethnic Tamils). Moreover, Christians – comprising Roman Catholics, Protestants, and other denominations – invariably hold ‘ethno-religious’ identities. Ethnically speaking, they usually belong to the Sinhalese, Tamil, and Burgher communities. The demographic intricacies of these various groups point to the underlying complexity of communal violence in Sri Lanka. The entrenched nature of such violence may be better understood when the governing identity politics behind such violence is conceptualized as ‘ethno-religious’ rather than merely ‘religious’. It is noted that ethnicity is more entrenched as an identity marker than religion is. Thus, understanding how ethnicity and religion come together to create a complex, entrenched identity on ethno-religious lines is important to deconstructing the causes of contemporary communal violence in Sri Lanka.
Sri Lanka’s constitutional framework contains several ethno-religious dimensions. The most foundational constitutional provision in this regard is Article 9 of the 1978 Constitution of Sri Lanka (Constitution). It provides that ‘[t]he 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)’.
Article 10 of the Constitution provides: ‘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’. Meanwhile, Article 14(1)(e) provides that every citizen is entitled to ‘the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching’. Thus, Buddhism and the ‘Buddha Sasana’Footnote 7 enjoy special constitutional status in Sri Lanka, whereas the constitutional text affords all other religious groups certain rights and freedoms.
This article delves into the post-January 2015 context in Sri Lanka and examines the implications of ethno-religious violence for future constitutional reform. It asks two key questions: (1) What does the persistent nature of ethno-religious violence in Sri Lanka tell us about the underlying features of the Sri Lankan state and, consequently, constitutional practice?; and (2) Do those features determine the scope of future constitutional reform?
This article is presented in three sections. The first section briefly analyzes the current state of ethno-religious violence in Sri Lanka. It examines recent reports of violence, based on data gathered by non-governmental organisations such as the National Christian Evangelical Alliance of Sri Lanka (NCEASL) and the Secretariat for Muslims. The second section offers a hypothesis on why such violence has persisted despite the democratic transition of January 2015. It argues that ethno-religious violence is entrenched within Sri Lanka’s constitutional practice due to at least three drivers: (1) the entitlement complex of the Sinhala-Buddhist majority; (2) the existential fears of the Sinhala-Buddhist majority; and (3) monastic exceptionalism applicable to the Sinhala-Buddhist clergy. The final section discusses the relationship between ethno-religious tensions, the nature of the Sri Lankan state, and the space for meaningful constitutional reform. It argues that the drivers of ethno-religious violence in Sri Lanka reveal something about what a majority of Sri Lankans conceive as ‘constitutional’. It accordingly concludes that Sri Lanka’s ‘political constitution’Footnote 8 embodies a certain structural dispensation that perpetuates ethno-religious violence as a means of maintaining Sinhala-Buddhist dominance. Until this fundamental dispensation is in some way transformed, constitutional reform with meaningful power sharing between the majority and minority communities remains an elusive aim.
II. ETHNO-RELIGIOUS VIOLENCE IN THE POST-WAR ERA
Two taxonomical axes may be useful to understanding the nature of violence in Sri Lanka. On the one hand, violence may be classified by its intensity along a spectrum that ranges from ‘chronic’ to ‘acute’. In a 2015 study, The Chronic and the Acute: Post-War Religious Violence in Sri Lanka,Footnote 9 I defined ‘chronic violence’ as continuous, low-intensity attacks, including hate campaigns and propaganda, threats, intimidation, coercion, minor destruction of property, and occasional physical violence.Footnote 10 By contrast, ‘acute violence’ was defined as high intensity, episodic violence, which can include widespread physical assault, destruction of property and a general breakdown of law and order.Footnote 11 On the other hand, violence can be classified in terms of its nature: physical, non-physical, and structural. Physical violence and non-physical violence are included in conventional definitions of violence such as the definition offered by the World Health Organization: ‘the intentional use of physical force or power, threatened or actual, against oneself, or against a group or community that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation’.Footnote 12 Moreover, Johan Galtung observes that social structures or social institutions that prevent individuals from meeting their basic needs inflict ‘structural violence’.Footnote 13 Thus, certain discriminatory practices may also be understood as amounting to ‘structural’ forms of violence, although they do not necessarily fall within the scope of physical or non-physical violence. This article adopts a broad definition of violence, which includes the physical, the non-physical, and the structural. Such a broad definition is perhaps important to understanding ethno-religious violence in Sri Lanka due to its entrenched structural roots. The study thus includes within the definition of violence a wide range of acts: (1) physical violence against persons; (2) destruction of property; (3) intimidation, threats and coercion; (4) hate campaigns and propaganda; and (5) discriminatory practices.Footnote 14
A. The Perpetuation of Violence
The Muslim community in Sri Lanka has been subjected to significant violence in the post-war period. There were 241 reported incidents of violence in 2013, and 200 reported incidents in 2014.Footnote 15 Meanwhile, NCEASL recorded 69 incidents of violence against Christians in 2013, and 88 incidents in 2014.Footnote 16 Much of the violence during this period was enabled through the support of former president Mahinda Rajapaksa’s government. Such support either came directly, through patronage accorded to militant groups, or indirectly, through acquiescence or inaction.
The violence that took place in Aluthgama in June 2014 is a possible example of direct governmental support towards ethno-religious violence. On 15 June 2014, riots erupted in Aluthgama and several neighbouring towns located in the south of Sri Lanka. The area has a large Muslim population that lives alongside a larger Sinhalese community. The incident that reportedly triggered the riots in 2014 was an altercation between a Buddhist monk and three Muslims from the area.Footnote 17 Following the incident, a large rally was organized on 15 June to condemn the alleged attack on the Buddhist monk. The Bodu Bala Sena (BBS) – a Sinhala-Buddhist militant group – participated in this rally and Galagoda Aththe Gnanasara Thera, the General Secretary of the BBS, made racist and inflammatory remarks against Muslims at the rally.Footnote 18 His statement provoked groups to attack Muslim-owned businesses and homes in the area. Four persons including three Muslims were killed and over a hundred Muslim homes and businesses were destroyed during the riots that followed. The incident was described by the United Nations Office of the High Commissioner for Human Rights as ‘one of the worst incidents of sectarian violence in Sri Lanka’s recent history’.Footnote 19 Law enforcement authorities initially failed to intervene to halt the violence. Moreover, a number of witnesses alleged that some attackers wore boots and helmets – suggesting that they had access to military equipment.Footnote 20 Such testimonies raised strong suspicions of the state’s direct involvement in the riots.
Direct governmental support for ethno-religious violence in Sri Lanka was expected to cease with the change of government in January 2015. The new president Maithripala Sirisena’s election manifesto expressed a clear commitment to deal with ethno-religious violence in the country.Footnote 21 He accordingly received overwhelming support from religious minorities. The polling results in the electoral districts with high concentrations of religious minoritiesFootnote 22 were telling: Sirisena won comfortably in 30 out of 31 such electoral districts. He received 973,263 more votes than his opponent Rajapaksa in these districts alone, whereas he won the entire election by only 449,072 votes.Footnote 23 The nexus between the Rajapaksa administration and ethno-religious violence had a discernible impact on the outcome of the election.Footnote 24 Thus, following the January 2015 governmental transition, a decrease in direct state support towards perpetrators of violence was expected to bring an end to violence against religious minorities.
Yet, violence against both Muslims and Christians has continued during the post-January 2015 period. Between January and end-September 2015, the Secretariat for Muslims reported eighty-two incidents of chronic violence against Muslims. According to Minority Rights Group International (MRG), sixty-four incidents of violence against Muslims were recorded during the period between November 2015 and June 2016.Footnote 25 Meanwhile, NCEASL reported eighty-seven incidents of violence against Christians in 2015.Footnote 26 In a statement released in May 2017, it claimed that 190 incidents of violence against Christians had been recorded since the new government was installed.Footnote 27
The state’s involvement in post-January 2015 violence has been largely indirect, and mainly through its inaction in cases of violence perpetrated by non-state actors. For example, on 13 January 2015, militant Sinhala-Buddhist group Ravana Balaya attacked an archaeological site in Kuragala in the Sabaragamuwa province, damaging gravesites and a building belonging to the Department of Archaeology.Footnote 28 A Sufi Muslim shrine and mosque is located at the site. Other militant groups including BBSFootnote 29 and Sinhala Ravaya have agitated – often through violent means – for the removal of the shrine and mosque on the basis that the site contains the ruins of an ancient Buddhist monastery.
The state’s inaction has contributed to a culture of impunity amongst perpetrators of violence. Although the extent of state patronage offered to militant groups may have decreased after the 2015 transition, the state’s failure to hold perpetrators accountable has reinforced impunity even after the change of government in 2015. Thus, the new government has indirectly supported and enabled ethno-religious violence through its inaction. The impunity generated through this inaction reached a tipping point in 2017, as a sudden spike in ethno-religious violence against Muslim businesses was recorded during April and May.Footnote 30
The trend in violent incidents reflected a sharp change in the tactics of militant groups in 2017. The non-physical chronic violence that was tolerated during the preceding two years had perpetuated a climate of impunity that enabled graver physical acts of violence. This physical chronic violence signalled the likelihood of an incident of acute violence taking place. That incident arrived on 17 November 2017 in Gintota in the Galle district. A dispute related to a traffic accident had taken place a week earlier and created communal tensions in the area.Footnote 31 These tensions were exacerbated by news of an attack on Sinhalese residents by a group of Muslims led by a local politician.Footnote 32 Violence erupted on 17 November and spread across the area, resulting in injuries to several individuals and the destruction of ‘dozens of Muslim homes and businesses’.Footnote 33 According to journalist Dharisha Bastians, some observers pointed to Ambalangoda Sumedhananda Thera – the chief monk of the Thuparamaya Temple – as one of the main instigators of the violence.Footnote 34 Sumedhananda Thera reportedly hosted a public meeting prior to the eruption of the violence.Footnote 35 Then in March 2018, riots targeting the Muslim community took place in Digana, Teldeniya, and surrounding areas in the Central Province, following another traffic incident that led to the death of a Sinhalese lorry driver. The anti-Muslim violence that ensued resulted in two deaths and damage to four mosques and over 400 businesses and homes.Footnote 36 Once again, a Buddhist monk, Ampitiye Sumanarathana Thera, was reportedly among the instigators of the violence. While some laypersons involved in the violence were subsequently arrested, Sumanarathana Thera was not.Footnote 37 These incidents illustrate that the state’s failure to combat impunity in the post-January 2015 period had emboldened militant groups. These groups had gained the confidence not only to sustain chronic violence, but also to carry out bolder acts of acute violence against the Muslim community – reminiscent of the post-war ethno-religious violence witnessed during the previous administration.
Meanwhile, discrimination against minority religious groups has continued during the post-January 2015 period. For example, in March 2015, the Seruwila Divisional Secretary instructed all staff to refrain from wearing the abaya – a Muslim form of dress that covers the head of the wearer – to office.Footnote 38 Staff members who were unwilling to follow instructions were prohibited from attending work. Christians have also encountered discrimination by state officials – particularly at the local level. A 2008 CircularFootnote 39 requiring places of worship to be registered with the Ministry of Buddha Sasana was routinely invoked to suppress the religious worship of smaller churches and Christian groups. On 9 September 2015, for instance, four officers from the religious affairs branch of the Divisional Secretariat in Kegalle visited the pastor of the Good Shepherd Gospel Centre and threatened to seal the premises if he refused to register under the 2008 Circular.Footnote 40 Moreover, large-scale intimidation of Christians by unidentified mobs led by Buddhist clergymen also took place during this period. A prominent example of this phenomenon took place in Devinuwara, Matara on 18 May 2017 – approximately thirty Buddhist monks and a mob estimated to be over 2,000 persons staged a major protest against a Christian place of worship.Footnote 41
The foregoing discussion of ethno-religious violence in Sri Lanka leads us to an important conclusion: the change of government has not had a real impact on the nature and prevalence of violence against religious minorities in Sri Lanka.Footnote 42 Thus, it appears that the perpetuation of ethno-religious violence in Sri Lanka is not solely contingent on the policies of the government in charge. Such violence is more deeply embedded, and possibly remains part of Sri Lankan conceptions of the state and the constitution.
B. The Response of the State
Sri Lanka’s legal system is replete with remedies relevant to ethno-religious violence. The Penal Code No 2 of 1883, for instance, includes a broad (perhaps overbroad) range of offences dealing with physical and verbal attacks on religious communities.Footnote 43 The Police Ordinance No 16 of 1865 also criminalizes certain types of attacks on religious groups, including breaches of peace, physical attacks, threats and intimidation.Footnote 44 Most importantly, Section 3(1) of the International Covenant on Civil and Political Rights (ICCPR) Act No 56 of 2007 (ICCPR Act) provides: ‘no person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’. The provision effectively incorporates Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR). The High Court has exclusive jurisdiction over the offence, and trials involving the offence are given the highest priority.Footnote 45
Apart from extensive penal provisions to deal with physical and non-physical forms of violence, Sri Lanka’s formal constitutional framework offers remedies for structural forms of violence. The fundamental rights jurisdiction of the Supreme Court and the writ jurisdiction of the Court of Appeal can respectively deal with cases of discrimination on the grounds of religion or cases involving the arbitrary use of executive power. Article 12(2) of the Constitution provides: ‘[n]o citizen shall be discriminated against on the grounds of…religion’. Moreover, Article 12(3) provides: ‘[n]o person shall, on the grounds of race, religion, language, caste, sex or any one of such grounds, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion’.
Thus, it is clear that Sri Lanka’s formal constitutional and statutory framework provides adequate remedies to deal with physical, non-physical and structural forms of violence. Yet, the availability of these remedies has not translated into genuine measures to combat ethno-religious violence. A recent study on judicial responses to violence against Christians is illuminating in this respect.Footnote 46 According to its author Sabrina Esufally, ‘notwithstanding a legal and policy framework that guarantees the freedom of religion…lower courts have seldom endeavoured to protect minorities from religious violence’.Footnote 47 She notes that appellate courts have occasionally upheld the rights of religious minorities.Footnote 48 Yet, these interventions have been extremely rare. Moreover, as Esufally rightly concludes, the general approach of the appellate courts has been to focus on the legality of the state’s action rather than on the need to advance religious freedom or non-discrimination on the grounds of religion.Footnote 49
This conservative approach was clearly evident in the recent judgment of the Supreme Court in Faril v Bandaragama Pradeshiya Sabha.Footnote 50 The case involved the construction of a Muslim school in Bandaragama. Local Buddhist monks and villagers protested the construction claiming that a Mosque was being constructed instead of a school. Following the protests, the police and local government officials ordered the suspension of the construction on the basis that necessary approvals had not been obtained from the relevant ministry in-charge of religious affairs.Footnote 51 The petitioners filed a fundamental rights application before the Supreme Court complaining that their rights to equality and non-discrimination had been violated. The Court upheld the decision of the police and local government officials on the basis that ‘due consideration’ had to be given to the protests to ‘avoid a crisis situation’.Footnote 52 It dismissed the petition, and held that the stand taken by the authorities was lawful, as no prior approval for the construction had been sought from the relevant ministry.Footnote 53 Thus, judicial responses to ethno-religious violence have remained conservative and ultimately failed to combat the climate of impunity pervading Sri Lanka.
The law enforcement and prosecutorial systems in Sri Lanka have also failed to advance justice and accountability for acts of violence against religious minorities. An illustration of this inaction is the fact that no person has been convicted under Section 3(1) of the ICCPR Act in the ten years since its enactment. For instance, no persons have been convicted for inciting violence perpetrated during the Aluthgama riots of 2014. The present government did in fact invoke the ICCPR Act to frame charges against 22 persons allegedly involved in the Gintota incident of November 2017.Footnote 54 The indictments are the first of their kind, and may reflect some degree of governmental willingness to enforce existing laws in the future. However, the impunity enjoyed by perpetrators of ethno-religious violence during the Rajapaksa administration has, in large part, continued under the new government.
III. DRIVERS OF ETHNO-RELIGIOUS VIOLENCE IN SRI LANKA
There are two possible explanations for the present government’s failure to invoke appropriate legal remedies to end ethno-religious violence in Sri Lanka. On the one hand, such failure could be due to a lack of capacity to overcome underlying drivers of ethno-religious violence. On the other hand, the failure could be due to the fact that some quarters within the government subscribe to and support these major drivers of ethno-religious violence. Regardless, these drivers have served to entrench ethno-religious violence within the socio-political and cultural fabric of the country. This section discusses three drivers of ethno-religious violence, and examines the manner in which these drivers shape constitutional practice in Sri Lanka.
Heiner Bielefeldt, Nazila Ghanea, and Michael Wiener deconstruct the state’s responsibility to respect and protect the freedom of religion by analyzing the relationship between the state and non-state actors.Footnote 55 They explain that the role of the state cannot be neatly separated from non-state actors for at least three reasons. First, the state is responsible for creating the environment that either facilitates or impedes religious freedom.Footnote 56 Second, the state can play a more direct role in collaborating with non-state actors to produce a ‘persistent pattern of discrimination’ against religious minorities.Footnote 57 Third, the state can play an indirect role through acquiescence or by failing to fulfil its positive obligations to protect religious minorities from ‘entrenched discrimination’.Footnote 58 Thus, ethno-religious violence is sustained in a society invariably through the action or inaction of the state.
In Sri Lanka, both ultra-nationalist and relatively progressive governments have tolerated ethno-religious violence to varying degrees. This tolerance has led to a culture of impunity, the culpability for which cannot be solely assigned to the Rajapaksa government. The Sirisena-Wickremesinghe government’s reluctance to end impunity reveals a disconcerting feature about Sri Lanka’s constitutional order: it appears that the Sri Lankan constitution – particularly if it is understood to reach beyond the formal constitutional text – embodies a certain structural dispensation towards ethno-religious violence. Three underlying drivers of ethno-religious violence sustain this dispensation: (1) the entitlement complex of the Sinhala-Buddhist majority; (2) the existential fears of that majority; and (3) the monastic exceptionalism associated with the Sinhala-Buddhist clergy. These drivers reveal how Sinhala-Buddhists – indisputably a numerical majority within Sri Lankan society – understand their constitutional status and the threats thereto. They also reveal the intrinsic relationship between ethno-religious violence and constitutional practice in Sri Lanka.
A. Entitlement Complex
Mahāvamsian ideas of Sinhala-Buddhist dominance prior to colonization have contributed to a distinct socialization of the Sinhala-Buddhist community in Sri Lanka. The Mahāvamsa, or ‘Great Chronicle’, is proclaimed to be a historical narration of Buddhism’s ascendance in Sri Lanka.Footnote 59 While it is likely that a majority of Sinhala-Buddhists have never read the Mahāvamsa, the text ‘occupies…a central place in their collective raison d’être’;Footnote 60 many accordingly possess a sense of entitlement to the country. In fact, Sinhala-Buddhist nationalism relies on the Mahāvamsian passage regarding the consecration of Vijaya by the Buddha, and the specific reference to ‘Lanka’ as the place in which Buddhism will be established. The relevant passage in which the Buddha addresses Sakka, king of the gods, reads:
Vijaya, son of king Sihabahu, [has] come to Lanka from the country of Lala, together with seven hundred followers. In Lanka, O lord of gods, will my religion be established, therefore carefully protect him with his followers and Lanka.Footnote 61
The passage clearly ties the characterization of ‘Lanka’ as a Buddhist land to the divine protection of Vijaya, the first Sinhalese king in Sri Lanka, and his followers. Thus, the passage forms a strong mythological basis for believing that Sri Lanka is a Buddhist country, and that Sinhala-Buddhists are divinely protected at the request of the Buddha himself. This mythological narrative has remained largely unchallenged in the Sinhala-Buddhist imagination. Gananath Obeyesekere rightly observes that ‘myths that centrally define the origin and ethnic identity of a group permit little debate, unless people face problems pertaining to their origin and identity as a consequence of historical vicissitudes’.Footnote 62 Apart from historians such as RALH Gunawardena, few have challenged these Sinhala-Buddhist origin myths. These myths have accordingly come to be accepted as ‘indisputable history’Footnote 63 and have laid the foundation for the Sinhala-Buddhist entitlement complex.
The more recent historical roots of this entitlement complex can be traced to the Buddhist revivalist movement led by ideologues such as Hikkadụwe Sri Sumangala Thera,Footnote 64 Anagarika Dharmapala and Piyadasa Sirisena during the late nineteenth and early twentieth centuries.Footnote 65 Their work is continued by contemporary writers such as Gunadasa Amarasekera and Nalin De Silva, who have written prolifically on the proclaimed existence of a ‘single, overarching Sinhala-Buddhist culture’ wherein minorities were respected, provided they accepted ‘the norms of the dominant culture as their own’.Footnote 66 This idea has engendered and sustained the entitlement complex of the Sinhala-Buddhist majority in the country. Such a complex is now reflected in school history textbooks, which borrow uncritically from these Mahāvamsian stories of successful military campaigns led by Sinhala rulers against ‘foreign rulers’ to ‘protect Buddhism and the Sinhalese nation’.Footnote 67 For example, chapter six of the history textbook for grade six students contains an account of Dutugemunu, a Sinhalese ruler, defeating Elara, a Tamil ruler described as ‘foreign’. According to the account, the Sinhalese ruler aimed to ‘liberate the country from foreign rule’, ‘reunite the country’ and ‘protect Buddhism’.Footnote 68 Thus from the political arena to the classroom, the idea that Sri Lanka belongs to Sinhala-Buddhists appears to have been mainstreamed.Footnote 69
The entitlement complex of Sinhala-Buddhists has penetrated much of Sri Lanka’s post-independence constitutional thought. The 1947 Sri Lankan Constitution (framed by the British-appointed Soulbury Commission) did not afford Buddhism special constitutional status. But as Benjamin Schonthal notes, its failure to formally protect the interests of Buddhism was one of the major bases on which this early constitutional text was criticized.Footnote 70 The Sinhala-Buddhist nationalist movement gained in momentum thereafter, which was reflected in a series of legal, institutional and constitutional measures. First, the government of SWRD Bandaranaike enacted the Official Language Act No 33 of 1956, which made Sinhala the official language of the administration. The Act marginalized non-Sinhala speaking public servants, and resulted in the Sinhalese domination of the public sector. Stanley J Tambiah recalls that the Act ‘served to deepen the Sinhalese-Tamil rift…and make collective adversaries out of Sinhalese and Tamils’.Footnote 71 Second, the government in the 1970s standardized university admission. The new system advantaged Sinhalese candidates, as the number of places available to Sinhalese and Tamil candidates were distributed in proportion to the number of candidates who sat examinations in Sinhala and Tamil. Third, the first Republican Constitution of 1972 (1972 Constitution) formally recognized Sinhala as the national language and afforded the ‘foremost’ place to Buddhism.Footnote 72 The proposal to formally grant special constitutional status to Buddhism was advanced by the Sri Lanka Freedom Party (SLFP) during the 1960s, and was eventually featured in the manifesto of the United Front in 1970.Footnote 73 Subsequent to its victory at the election, the SLFP ensured that the following clause was included as section 6 of the 1972 Constitution:
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 Buddhism while assuring to all religions the rights granted by section 18(1)(d).
These provisions were included in the 1978 Constitution,Footnote 74 although Tamil was later recognized as a national language following the enactment of the Thirteenth Amendment to the Constitution.
The ‘foremost place’ occupied by Buddhism remains central to Sri Lanka’s constitutional practice and constitutional jurisprudence on religious freedom.Footnote 75 In the Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation) Footnote 76 case, the Supreme Court of Sri Lanka considered the constitutionality of a Bill to incorporate an institution with the stated purpose of spreading ‘knowledge of the Catholic religion’.Footnote 77 The institution’s mandate included providing shelter to orphans, children and the elderly. The Supreme Court struck down the Bill on the basis that it violated Article 9 of the 1978 Constitution, which formally guarantees the ‘foremost place’ to Buddhism. It held that Article 9 restricted individuals of other religions from ‘propagating’ their faith through the provision of material benefits to those outside their religion.Footnote 78 The Court concluded that ‘propagation and spreading Christianity [through the provision of material benefits] would not be permissible, as it would impair the very existence of Buddhism or the Buddha Sasana’.Footnote 79 Notably, Article 9 of the Constitution refers to the protection and fostering of the ‘Buddha Sasana’ and not only ‘Buddhism’ as per the 1972 text. Benjamin Schonthal and Asanga Welikala observe that this textual variance reflects an aim to ‘broaden the ambit of state protections for the majority religion’.Footnote 80 The term ‘Sasana’ is usually taken to mean the teachings of the Buddha.Footnote 81 However, as posited by Gananath Obeyesekere, the term has two intertwined meanings in the Sri Lankan context; in a ‘universal’ sense, it is a reference to the broader Buddhist ‘church’ or ‘community’, and in a ‘particular’ sense, it is a historical reference to Sri Lanka as the ‘physical bounds of the land consecrated by the Buddha’.Footnote 82 He thus argues that, since the Sinhala lexicon had no term equivalent to the term ‘nation’, the term ‘Sasana’ must be understood as belonging to the same ‘polythetic class’ as ‘nation’.Footnote 83 Justice Wanasundara endorses a version of this interpretation in his dissenting opinion in the Thirteenth Amendment Bill Determination case.Footnote 84 As noted by Schonthal and Welikala, Justice Wanasundara’s observations regarding ‘the spatial and “compendious” nature’ of the term ‘Buddha Sasana’ has become influential.Footnote 85 They argue that, although Wanasundara’s opinion was the minority view in that particular case, it ‘has become something of a de facto jurisprudential doctrine in Sri Lanka and is regularly quoted in court submissions and judgments’.Footnote 86 Thus, Sri Lanka’s constitutional framework and jurisprudence bestows on the Sinhala-Buddhist nation a special status, which has perpetuated the entitlement complex of Sinhala-Buddhists.
The question then arises as to how this entitlement complex drives the entrenchment of ethno-religious violence. The complex first establishes a ‘host-guest’ dynamic within the country, whereby Sinhala-Buddhists perceive themselves as ‘hosts’ and all other groups as ‘guests’. The ‘host’ is entitled to be recognized as such and is often inclined to treat the ‘guests’ with respect and tolerance. The limits to the notion of tolerance within a ‘host-guest’ dynamic surfaces whenever the ‘guest’ seeks to alter the dynamic; for example, Tamil demands for autonomy, Muslim dominance of business, and Christian proselytism may be perceived as threatening the dominance of the ‘host’. In such instances, the ‘host-guest’ dynamic transforms into a ‘host-intruder’ dynamic. It is at this point of transformation that violent means of re-establishing the socio-political order are deployed.
An early example of such violence was the anti-Muslim riots of 1915. Michael Roberts observes that in the early twentieth century, Moors were already perceived by Sinhala-Buddhists as ‘a cunning, economically rapacious people who were extracting wealth’ that the Sinhala-Buddhists were entitled to.Footnote 87 He clarifies that the forces behind the riots identified not only as ‘Buddhists’ but also as ‘Sinhalese’, thereby adopting an ethno-religious identity.Footnote 88 Meanwhile, MA Nuhman notes that British colonial policies designed to win Muslim loyalty, such as the abolition of the poll tax (previously imposed by the Dutch) enabled Muslims to acquire wealth.Footnote 89 He argues that the emergence of Muslims as a successful business community prompted Sinhala-Buddhist nationalists, ‘who had a strong support of the Sinhala mercantile capitalists’, to start agitating against Muslims.Footnote 90 Against this backdrop of increasing inter-communal tensions, riots broke out in May 1915 following a dispute over a Buddhist procession.Footnote 91 Muslims insisted that Buddhist processions must cease ‘noise worship’ when passing by mosques, and the colonial authorities chose to divert the procession away from a mosque in Kandy.Footnote 92 Roberts explains that the perceived Muslim threat to Buddhism’s dominant status as ‘the religion of the land’ was combined with the ‘litany of [Sinhalese] grievances’ against the Muslim community, thereby creating the conditions for communal violence.Footnote 93 The incident in Kandy sparked anti-Muslim riots, which quickly spread throughout the country. The riots resulted in at least twenty-five deaths, and in damage to 350 houses and seventeen mosques.Footnote 94 The riots were an early example of how the disruption of the ‘host-guest’ dynamic between Sinhala-Buddhists and a minority group could result in ethno-religious violence. Yet, the colonial state’s response to the violence was swift and harsh. It imposed martial law, and arrested and executed persons found guilty of instigating and leading the riots.Footnote 95 The response ensured that acute ethno-religious violence would not recur during the remainder of British rule, which ended in 1948. Yet, with independence, one hegemonic power was replaced by another; the overarching socio-political and cultural conditions of Sinhala-Buddhist entitlement soon came to embody the newly independent state. In this context, the entitlement complex of the Sinhala-Buddhist majority, and the advancement of a nationalist ideology rooted in such entitlement, have served to entrench ethno-religious violence as a means of maintaining power.
B. Existential Fears
Tambiah describes the Sinhala-Buddhist community as a ‘majority with a minority complex’.Footnote 96 This description points to deeply-felt existential fears among many Sinhala-Buddhists that other communities in Sri Lanka – Tamils, Muslims and Christians – are in reality global communities, making Sinhala-Buddhists the real minority. Three factors may be identified as sources of these existential fears, which are intrinsically related to the entitlement complex discussed in the preceding section; these factors are perceived as undermining Sinhala-Buddhist entitlement.
First, the Tamil struggle for autonomy has been perceived by many Sinhala-Buddhists as an existential threat. The significance of the larger global Tamil community – including the large population of Tamils living in South India and the Tamil Diaspora communities – contributes to this perception. According to scholars such as Rajan Hoole, the struggle is understood by many Sinhala-Buddhists as a ‘slippery slope’ to the total loss of Sinhala-Buddhist domination in Sri Lanka.Footnote 97
Second, there are fears that Muslim population growth in Sri Lanka, and perceived Muslim dominance over trade, will threaten the numerical majority and economic prosperity of Sinhala-Buddhists. There is a statistical increase in the overall population share of Sri Lankan Moors since 1981. This share has increased from 7 per cent of the total population in 1981 to 9.2 per cent in 2012.Footnote 98 Moreover, increased visibility of Muslim religious practices in recent years, and perceptions that the Muslim community ‘controls trade’ in Sri Lanka, exacerbate these fears. Mohamed Faslan and Nadine Vanniasinkam argue that the competition between conservative Islamic groups in Sri Lanka has led to overt assertions of Muslim identity and piety, thereby increasing the overall visibility of Muslim religious practices.Footnote 99 They observe that this visibility has ‘created an illusion of an increase in the Muslim population, adding to the fear and suspicion of the majority towards the motives of the Muslim community and its “repressive” culture’.Footnote 100 Meanwhile, conflict mapping studies that aim to understand tensions between the Sinhala-Buddhist and Muslim communities often point to trade rivalries and economic competition as underscoring such tensions.Footnote 101 These perceptions and tensions make Muslims easy scapegoats for the state’s failure to deliver post-war economic prosperity to the majority population.Footnote 102
Third, Christian proselytism is perceived as a threat to the numerical and cultural dominance of Sinhala-Buddhists in Sri Lanka. This threat has historical roots, as the propagation of Christianity is associated with colonial missionary projects through which many Buddhists converted to Christianity.Footnote 103 It also evokes historical memories of physical, non-physical and structural violence by colonial administrations against Buddhists. Historian KM de Silva recalls that the establishment of Roman Catholicism under the Portuguese was achieved through the infliction of ‘tremendous suffering and humiliation’ on the adherents of traditional religions including Buddhism.Footnote 104 While mainline churches such as the Roman Catholic Church rarely engage in proselytism,Footnote 105 smaller churches continue to engage in it today. Such activity has arguably posed an existential threat to Sinhala-Buddhists.Footnote 106
Negative perceptions about religious minorities have converged to create fears among many Sinhala-Buddhists that their access to power, numerical advantage and cultural dominance are under serious threat. For decades, these fears have legitimized state-sponsored violence against Tamils under the pretext of combating terrorism and protecting national security.Footnote 107 In the post-war era, these fears underscore ethno-religious violence against Muslims and Christians. Thus militant groups such as BBS have capitalized on existential fears to justify and instigate violence against religious minorities. Campaigns against religious minorities are hence carefully designed to resonate with the existential fears of Sinhala-Buddhists. For example, BBS’ campaign against halal certificationFootnote 108 resonated with Sinhala-Buddhist fears over Muslim dominance in the market. The halal certification system required Muslim manufacturers to obtain prior certification for certain products. It was characterized by militant groups as a means for Muslims to maintain market monopolies, as the certification could discourage Muslim customers from purchasing products from non-Muslim manufacturers.
Moreover, the call for banning certain Muslim attire including the niqāb and hijāb, and the campaign to prohibit ‘unethical conversion’ by Christians, resonate with Sinhala-Buddhist existential fears. These campaigns and fears have culminated in widespread physical and non-physical violence against Muslim businesses and places of worship, and Christian pastors and churches. Discriminatory practices, such as the systematic enforcement of the 2008 Circular against Christian places of worship, are also driven by such fears. The state has continued to enable these campaigns and discriminatory practices. On the one hand, state authorities have actively participated in the discrimination. For example, local government officials and the police have enforced the 2008 Circular, which requires places of worship to be registered with the Ministry of Buddha Sasana.Footnote 109 On the other hand, state authorities have remained passive in response to hate and propaganda campaigns initiated by militant groups.Footnote 110 The state’s inaction has created the impression that the state tolerates such campaigns, and has served to entrench structural violence against religious minorities. It has also enabled many within the Sinhala-Buddhist majority to adopt violence as a primary means of assuaging their existential fears. As contended by Nirmal Ranjith Dewasiri, such violence has grown to become one of the fundamental expressions of the Sinhala-Buddhist nationalist imagination.Footnote 111
C. Buddhist Monastic Exceptionalism
The Buddhist clergy occupy an exceptional, and to a great extent, unparalleled position in Sri Lankan society.Footnote 112 Neil DeVotta and Jason Stone explain that ‘the historical relationship between Buddhism and the state has ensured that the monks maintain influence’.Footnote 113 Thus, the socio-political activism of even ‘wayward’ monks has been tolerated because ‘the saffron robe represents Buddha and Dhamma (doctrine)’.Footnote 114
The work of scholar monks such as Walpola Rāhula Thera lends the current socio-political activism of the Buddhist clergy a sense of historicity.Footnote 115 Rāhula Thera emphasized the importance of the clergy’s role in social service and political activity.Footnote 116 He may not have intended the formation of monastic political parties;Footnote 117 yet his monastic vision has played a crucial role in forming Sinhala-Buddhist nationalist political parties such as the Jathika Hela Urumaya (JHU), which includes Buddhist monks among the party membership.
The socio-political activism of the Buddhist clergy is closely associated with the ‘exceptional’ status they have come to enjoy in Sri Lanka. Juliane Schober notes that monks are viewed – both by themselves and the public – as ‘guardians of the Sri Lankan nation and defenders of the Dharma’Footnote 118 – the Sasana so to speak. Thus, their activism has become synonymous with safeguarding a Sri Lanka in which ‘Buddhism prospered’ and the Sinhalese identity remained protected.Footnote 119 This monastic ‘exceptionalism’ has come to apply to violence perpetrated or instigated by Buddhist monks ostensibly for the protection of Buddhism and Sinhalese identity. Such exceptionalism is also likely to cover ethno-religious violence ‘justified and encouraged’Footnote 120 by monks for the same ostensible purpose.
Buddhist monastic exceptionalism has over time evolved into a culture of impunity, which is reflected in the attitudes towards violence perpetrated or instigated by the Buddhist clergy today. A good example is the case of Ampitiye Sumanarathana Thera, the chief incumbent monk of the Mangalaramaya Temple in Batticaloa. Video footage and photographs of the monk assaulting police officers, destroying public property and verbally abusing state officials have permeated the media.Footnote 121 The monk is also associated with the anti-Muslim riots of March 2018. He has yet to face criminal charges for his actions. Meanwhile, the BBS General Secretary, Gnanasara Thera, evaded arrest for weeks following a failed attempt to arrest him in Kurunegala. Even after his eventual surrender to court, he was promptly granted bail.Footnote 122 While the impunity Gnanasara Thera has enjoyed under the new government is notably less than the absolute impunity he enjoyed under the Rajapaksa administration, the hesitance of both the police and the judiciary in securing his arrest and detention reinforces Buddhist monastic exceptionalism in Sri Lanka.
The exceptionalism of the clergy must not be examined in a political vacuum. In reality, this exceptionalism feeds into the decision-making of political actors, and feeds off the patronage of powerful actors within the state.Footnote 123 It arises due to the ‘symbiotic’ relationship between the Buddhist clergy and politicians.Footnote 124 Such symbiosis is perceived as having deep historical roots. For example, both ‘indigenous’ rulers such as Parākramabāhu I and ‘foreign’ rulers such as Nissanka Malla are historically credited for ‘reviving “Sinhala-Buddhist” polities’ on the island.Footnote 125 In such a context, paying homage to the Buddhist monastic community was a natural means of entrenching a ruler’s legitimacy within the Sinhala-Buddhist polity. Political actors today similarly reinforce the exceptionalism of the Buddhist clergy because such exceptionalism is perceived as being embedded in the psyche of many Sinhala-Buddhist voters. The culture of venerating Buddhist monks is familiar to political elites, particularly those from rural and suburban backgrounds. Thus, acts and words that reinforce monastic exceptionalism often amount to expressions of cultural legitimacy among Sinhala-Buddhist voters. Even the more cosmopolitan political elites who lack such cultural legitimacy may opt to tolerate monastic exceptionalism in a bid to appeal to those voters.
The failure to initially arrest Gnanasara Thera, and the promptness of his release, reflects this reality in practice. Despite the fact that the Cabinet of Ministers issued a statement on ethno-religious violence expressing a commitment to combat impunity,Footnote 126 there was speculation that ministers in the Cabinet were in fact protecting the monk.Footnote 127 While the reasons for such protection may be numerous, it is reasonable to assume that the general inclination of the state to appease the Buddhist clergy was among such reasons. As explained by DeVotta, it appears that the high respect the institution of the Sangha enjoys has resulted in the treatment of even wayward monks with ‘grudging respect’. Footnote 128
A statement by the Mahanayake of the Asgiriya Chapter on 20 June 2017 reaffirms monastic exceptionalism in Sri Lanka. The statement – though disapproving of Gnanasara Thera’s ‘aggressive’ approach – appears to legitimize the objectives of his campaigns.Footnote 129 Notably, the statement avoided any condemnation of hate speech or acts of violence perpetrated by BBS. Thus, the mainstream Buddhist establishment has also been unwilling to endorse, let alone advance, the accountability of Buddhist monks including rogue monks outside the mainstream. This exceptionalism has contributed to the entrenchment of ethno-religious violence in the country.
Sinhala-Buddhist entitlement complexes, existential fears, and monastic exceptionalism explain why ethno-religious violence has persisted in Sri Lanka despite governmental change. Such violence is deeply embedded within Sri Lanka’s socio-political and cultural fabric and has infiltrated its state structure. On the one hand, these structural features shape the manner in which formal constitutional provisions and laws are formulated and invoked in Sri Lanka. They also explain the relatively thin jurisprudence on religious freedom in the country. On the other, these features reflect what a majority within Sri Lankan society view as ‘constitutional’. It is important that the ‘Sri Lankan constitution’ be understood as existing beyond the formal constitutional text, and (also) within socio-political conceptions of the ‘constitutional’. In this context, Sinhala-Buddhist entitlement complexes, existential fears, and monastic exceptionalism appear to underlie actual constitutional practice in Sri Lanka.
IV. CONSTITUTIONAL TRANSFORMATION
David Smock explains that the intertwining of both ethnic and religious dimensions make ethno-religious conflicts particularly difficult to resolve.Footnote 130 Many conflicts around the world – such as those in Israel/Palestine, Bosnia, Nigeria, and indeed Sri Lanka – have had both ethnic and religious dimensions.Footnote 131 On the one hand, these conflicts have featured strong ethnic dimensions, particularly during their early stages. On the other, they have grown to incorporate religious dimensions, thereby morphing into ethno-religious conflict. As Seth Kaplan observes, religious identity and belief can become tools for leaders or extremists to mobilize fighters in a way that ethnic sentiments cannot.Footnote 132 Thus, leaders – particularly those of what Kaplan describes as ‘fragile’ states – tend to ‘opportunistically use religion’ alongside other identity markers such as ethnicity ‘to gain, maintain, and project power’.Footnote 133 Kaplan accordingly concludes: ‘religious actors tend to draw on a deeper infrastructure and a more developed belief system than ethnic actors’.Footnote 134 Thus, compromise in religious conflicts can be difficult. Yet, ethnic relationships tend to be more permanent than religious relationships. Therefore, such conflicts may also be hard to settle.Footnote 135 If both these types of conflicts have unique features that make them difficult to resolve, their combined complexities make ‘ethno-religious’ conflicts even more difficult to resolve. David Little points to the intractability of such conflicts in Lebanon, Syria, Iraq, and Northern Ireland, where religion has been ‘ethnicized’, making social divisions more permanent’.Footnote 136 Thus conflicts that take on the attributes of both ethnic and religious conflict ‘prove very hard to end’.Footnote 137
Sri Lanka has witnessed conflicts between the Sinhala-Buddhist majority and the Tamil minority (essentially along ethnic lines), and the Muslim and Christian minorities (essentially along religious lines). These conflicts are often understood as distinct; they are seldom described as strands within a single ethno-religious conflict. However, as discussed in the preceding section, these conflicts share common features and appear to be driven by at least three common drivers. It is hence worth considering a new framing of conflict between communities in Sri Lanka in the post-war context: a single ethno-religious conflict between a Sinhala-Buddhist majority and several minority groups defined along ethnic and religious lines.
As revealed in the preceding section, Sinhala-Buddhist entitlement complexes, existential fears, and monastic exceptionalism can shape identity politics in intractable ways. These drivers have come to define what is ‘constitutional’ in Sri Lanka – both in a legal-textual and socio-political sense. On the one hand, these drivers have shaped the text and interpretation of Sri Lanka’s constitutional and statutory frameworks. The text of the Constitution – specifically Article 9 – clearly privileges Buddhism. Moreover, the interpretation of even facially neutral provisions dealing with the fundamental right to religious freedom has remained subject to that privilege. Meanwhile, criminal law remedies designed to protect religious communities have been scarcely applied. Thus, few perpetrators of violence against religious minorities have been held accountable through the enforcement of criminal law. On the other hand, these drivers have come to define socio-political conceptions of what is ‘constitutional’ in Sri Lanka. These conceptions transcend the text of the 1978 Constitution; they both reinforce and supersede the formal constitutional text depending on the subject matter in question. For instance, these conceptions reinforce the foremost place given to Buddhism under the 1978 Constitution. Yet, they supersede legal constitutional ideals of equality, non-discrimination and religious freedom where such ideals clash with Sinhala-Buddhist entitlement and exceptionalism. As astutely observed by Asanga Welikala, this ‘political constitution derived from the mytho-historical worldview of Sinhala-Buddhist nativism’ constantly supersedes ‘legal modernity as reflected in the text of the legal constitution’.Footnote 138 These conceptions are thus embedded in the psyche of many Sinhala-Buddhists, who see themselves essentially as the ‘hosts’ of Sri Lanka, and see other communities as ‘guests’. Ethno-religious violence is a manifestation of such conceptions, as it emerges when the host perceives a threat from the guest. Such violence must ultimately be understood as an attempt to reinforce the constitutional order whenever the host-guest dynamic is disrupted.
The legal-textual and socio-political contours of Sri Lanka’s constitutional practice must not be examined in isolation of each other. They are deeply connected and mutually reinforcing. Their relationship now fundamentally governs the realm of constitutional reform today. Any proposed reform to the constitutional text that is fundamentally at odds with the socio-political conceptions of what is ‘constitutional’ in Sri Lanka is likely to fail.
Contemporary discourse on constitutional reform has revolved around three major priorities: (1) the abolition of the executive presidency, (2) electoral reform; and (3) power sharing between communities. It is the third priority that is most relevant to the present discussion, as a power sharing arrangement is often framed as the primary solution to the longstanding power struggle between the Sinhala-Buddhist majority and Tamil-speaking minorities. In this context, minority communities have sought reform that ensures devolution of power, and greater decision-making authority to sub-national units of government, which they could potentially control.
The Asgiriya and Malwatta Chapters of the Siyam Nikaya – one of the most prominent Buddhist monastic fraternities in Sri Lanka – have expressed opposition to constitutional reform.Footnote 139 The opposition is based on the view that the 1978 Constitution is adequate, and that any reform entailing power sharing (with minority communities) would lead to a division in the country. This monastic intervention is likely to be criticized as inappropriate religious interference into matters of constitutional law. Yet the intervention must be understood not merely as a political attempt to maintain the constitutional status quo. It is also a reflection of the form and substance of Sri Lanka’s political constitution. In form, the exceptional status of the Buddhist clergy in shaping perceptions of what is ‘constitutional’ was reinforced by this intervention. In substance, the intervention sought to protect Sinhala-Buddhist entitlement to centralized power – a foundational feature of Sri Lanka’s present constitutional order.
The question then arises as to how the present constitutional order can be effectively and sustainably transformed. The Sri Lankan experience suggests that reliance on legal institutions and formal textual reform alone may be grossly inadequate. Scholars such as Abdullahi An-Na’im suggest that a state-centric and legalistic approach to transformation is unlikely to succeed when the underlying culture is fundamentally resistant to reform.Footnote 140 An-Na’im may very well be correct in the case of Sri Lanka. In Sri Lanka, the entitlement of the Sinhala-Buddhist majority is deeply imbedded within the state, and is reflected in both legal and political constitutional structures. If such majoritarianism is the governing reality of the state, expecting the state to protect and promote the religious freedom of minorities as a matter of constitutional rights, and redistribute power among communities as a matter of constitutional law, may be improbable and unsustainable. An-Na’im accordingly explains: ‘too much emphasis has been placed on a narrow, state-centric, legalistic, and reactive approach’ to reform.Footnote 141 He clarifies that by ‘state-centric and legalistic’ he means ‘the tendency to perceive…legitimacy and authority…as founded on the legal obligation of states’.Footnote 142
Other scholars, including Brian Tamanaha and Benjamin Schonthal, have also proposed a departure from purely legalistic approaches to reform. Tamanaha argues that the law cannot be transplanted to clash with or be distant from ‘the social life and understandings of the populace’.Footnote 143 Schonthal, meanwhile, compellingly argues that in the Sri Lankan context, ‘constitutional mediation’ – by which he means dispute resolution through constitutional litigation – has served to polarize ethno-religious disputes further, making them even more intractable.Footnote 144 Ultimately, reliance on the Sri Lankan state to discharge some legal obligation to protect and promote religious freedom, and maintain power sharing agreements is futile if such freedom and arrangements are not legitimate within the cultural mores that shape constitutional practice in Sri Lanka. It is worth noting Tamanaha’s warning that projects designed to build a ‘culture’ that respects the rule of law are bound to fail for the same reasons that institutional reform is likely to fail.Footnote 145 He argues that culture and institutions are ‘mutually constitutive’: they emerge at the same time and grow together.Footnote 146 Yet Tamanaha’s challenge may to some extent be overcome if the process of cultural transformation is incremental and relies fundamentally on a vocabulary that resonates with the local community that is the subject of transformation.Footnote 147 In this context, An-Na’im’s approach to cultural transformation is worth considering as a viable alternative. At the core of this approach is the use of a resonant vocabulary that appeals to the culture that is intended for transformation. He argues that legalistic discourses often fail to resonate with local communities; they often fail to appeal to dominant communities that do not need to rely on a constitutional text or rights framework to secure their status. In such a context, An-Na’im argues for the use of ‘arguments [that] are likely to be persuasive to the specific community, or able to address their apprehensions and concerns, in relation to whatever frame of reference that is accepted by that community as authoritative or applicable’.Footnote 148
The recent work of Michael Ignatieff appears to support this view. He argues that universal moral recognition of the human rights of ‘others’ is not well established across cultures. In such a context, he suggests that ‘ordinary virtues’ be relied upon as a complementary language that could resonate with the specific communities concerned.Footnote 149 He therefore advocates for more emphasis to be placed on ‘ordinary virtues’ such as compassion, tolerance, mutual recognition and forgiveness to convince individuals and communities to recognize and respect the ‘other’. In a study carried out across eight countries over three years, Ignatieff found that individuals rarely ‘evoked ideas of general obligation to human beings,’ but instead frequently ‘reasoned in terms of the local, the contingent, the here and now – what they owed those near to them and what they owed themselves’.Footnote 150
It should be clarified, however, that the language of ordinary virtues ought not to replace rights and legal constitutional language. Instead, such vocabularies ought to complement and strengthen existing rights and legal constitutional discourses and vice versa. A precise exposition on what those ordinary virtues might be in the Sri Lankan context would require empirical research that is beyond the scope of this article. However, it is possible to surmise that such virtues exist and are discoverable. For instance, ordinary virtues such as ‘reciprocity’ and ‘respect’ do exist across communities and could be invoked to justify the recognition of religious freedom and equal citizenship. Moreover, Buddhist norms such as mettā (loving kindness) and karuṇā (compassion) may be invoked to foster a culture of coexistence that is not contingent on a paternalistic notion of ‘tolerance’. These virtues and norms could be meaningfully explored and mainstreamed among the Sinhala-Buddhist majority if religious freedom of minorities is to become culturally legitimate. Religious minorities must in turn be encouraged to subscribe to similar or equivalent virtues and norms in order to demonstrate reciprocity and mutual respect. Thinkers within the Buddhist monastic community, such as Galkande Dhammananda Thera, have called for a holistic and inclusive approach to the restoration of trust between ethno-religious communities.Footnote 151 Ultimately, ethno-religious coexistence must be achieved through a process of socio-cultural, economic, and political negotiation between communities to determine the peaceful terms on which they manifest their religion or belief, access resources, and share power.
In this overarching context, it is clear that socio-political conceptions of what is ‘constitutional’ in Sri Lanka should be transformed alongside reforming the formal constitutional text. Such transformation is likely to be difficult and time consuming. It will entail a ‘generational’ project designed to transform ethno-religious relations and establish a new constitutional order based on religious freedom and equal citizenship. The underlying object of such a project ought to be the transformation of belief systems that are fundamentally at odds with religious freedom and equal citizenship. Thus, alternative discourses that acknowledge and engage Sinhala-Buddhist entitlement complexes, existential fears, and monastic exceptionalism ought to be considered. While a detailed discussion of this project is beyond the scope of this article, the main domains in which the project should operate are worth mentioning.
First, primary and secondary school curricula should remain a crucial domain in which the identity and beliefs of individuals are shaped. As observed in The Chronic and the Acute, the impressionable minds of children have been continuously subjected to a process of socialization whereby Sri Lanka is framed as a Sinhala-Buddhist country in which other communities are ‘foreign’. As noted in a recent UNESCO Policy Paper, current textbooks are largely confined to a ‘Sinhalese-centric history of the country’. Footnote 152 These textbooks thus fail to recognize ‘alternative interpretations of historical events’ to encourage students to critically reflect on the past.Footnote 153 Instead, school curricula in Sri Lanka reinforce the socialization of Sinhala-Buddhist entitlement, which may be difficult to reverse in adulthood. Thus, reordering socio-political conceptions of what is ‘constitutional’ in Sri Lanka requires an initial project of vetting and revising the curricula to eliminate discourses that perpetuate ethno-religious superiority and inter-communal antagonism.Footnote 154
Second, apart from school curricula, official narratives of the state also tend to reinforce the Sinhala-Buddhist entitlement complex. For example, the publication People of Sri Lanka produced by the Ministry of National Coexistence, Dialogue and Official Languages claims that ‘Sinhala-Buddhists, Tamil-Hindus, Sinhalese Christians and Muslims’ coexisted in ‘peace and harmony’, which was a hallmark of the ‘Sinhala nation’ throughout history.Footnote 155 This narrative perpetuates Sinhala-Buddhist entitlement, and undermines prospects for a meaningful transformation of constitutional practice. Official narratives of this nature need to be discontinued and replaced with alternative narratives that establish the historicity of multiculturalism and equal citizenship.
Third, social media remains a crucial arena in which cultural discourse is generated and transformed. As observed by Shilpa Samaratunge and Sanjana Hattotuwa, social media can become a platform for hate speech against religious minorities.Footnote 156 Moreover, militant groups use social media sites to disseminate propaganda that provoke and reinforce notions of communal entitlement and existential fears. Social media can accordingly establish the toxic conditions that precede ethno-religious violence: what Tambiah calls ‘the rumour waves of prejudice and demonization’.Footnote 157 He observes that distorted perceptions and active physical violence are often ‘parallel and complementary processes’.Footnote 158 This type of rumour generation and dissemination was observed in the Gintota incident of November 2017. According to some reports, the violence was incited via social media through the spreading of rumours that Muslims were planning attacks on Sinhalese in Gintota.Footnote 159 Thus, critically engaging voices within these spaces through counter-messagingFootnote 160 is crucial to preventing ethno-religious violence. This process of counter-messaging is precisely what instruments such as the Rabat Plan of Action prescribe as an alternative to state regulation of offensive speech.Footnote 161 Importantly, the Rabat Plan of Action reinforces the central theses of scholars such as An-Na’im and Ignatieff on the use of resonant vocabularies. It acknowledges that ‘positive traditional values, compatible with internationally recognized human rights norms and standards, can … contribute towards countering incitement to hatred’.Footnote 162 Such counter-messaging may be vital to the overall project of constitutional reordering in Sri Lanka. For what is perceived as ‘constitutional’ in the hearts and minds of the Sinhala-Buddhist majority must be transformed – from entitlement and exceptionalism, to religious freedom and equal citizenship.
V. CONCLUSION
The process of constitutional transformation in Sri Lanka must aim to establish a new constitutional order compatible with religious freedom and equal citizenship. The ultimate goal of this process of transformation is a society in which violence – in all its physical, non-physical, and structural forms – ceases to be entrenched, and ceases to govern conceptions of the ‘constitutional’. Only in such a society can meaningful power sharing between communities take place. If such transformation is achieved, the formal constitutional text will reflect, rather than merely aspire to, a constitutional order based on the freedom and equality of all communities.
This article set out to discuss the entrenched nature of ethno-religious violence in Sri Lanka. It first argued that the violence that takes place between the Sinhala-Buddhist majority community and minority communities must be understood as part of a single ‘ethno-religious’ conflict, rather than as separate ethnic and religious conflicts. In this context, the conflict in Sri Lanka bears features of both ‘ethnic’ and ‘religious’ conflicts, and is uniquely intractable. This article then highlighted the fact that ethno-religious violence – particularly in its chronic form – has persisted even after the democratic transition of January 2015. Thus, governmental change has had limited impact in terms of ending ethno-religious violence in the country. The current intractable state of ethno-religious violence in Sri Lanka reveals a deeply embedded feature of our constitutional order; it defines Sri Lanka’s ‘political constitution’ and shapes what the majority in the country perceives as ‘constitutional’.
Three vital drivers remain at the core of ethno-religious violence in Sri Lanka. First, the Sinhala-Buddhist community has undergone decades of socialization that has led to a distinct entitlement complex. This complex is at the heart of Sri Lanka’s political constitution, and has prompted the majority community to view themselves as the rightful owners and ‘hosts’ of Sri Lanka. Any serious threat to this hegemonic status by a minority community has been met with sharp resistance, and has often led to violence. Second, global identities pertaining to Tamils, Christians, and Muslims have engendered a ‘minority complex’ among Sinhala-Buddhists, who essentially see Sri Lanka as their only homeland. Local discourses – such as Tamil self-determination, Islamization, and Christian proselytism – have reinforced existential fears among the Sinhala-Buddhist community. Such fears explain why nationalist rhetoric of militant groups often resonates with Sinhala-Buddhists, and how ethno-religious tensions can so easily escalate to violence. Third, the Buddhist clergy remains a powerful socio-political force that constitutional and statutory law is often subordinate to. This monastic exceptionalism has led to a culture of impunity, as law enforcement agencies and the judiciary have remained reluctant to hold perpetrators of ethno-religious violence to account. These three drivers combine to entrench ethno-religious violence in Sri Lanka. They have also penetrated Sri Lanka’s constitutional practice, as they remain fundamental to majoritarian conceptions of what is ‘constitutional’.
Finally, this article pointed to the serious limitations of legal and state-centric approaches to constitutional reform. Given that the state itself has embodied a majoritarian agenda, relying on legal-textual and institutional reform alone is likely to be ineffective and unsustainable. This article has instead recommended constitutional transformation as a cultural transformative project through which values of freedom, equality, and coexistence are promoted at all levels. It also suggested that the vocabulary through which such a project is advanced be ‘resonant’. Thus, ‘ordinary virtues’ and widely held values must be relied upon to convince both majority and minority communities of the importance and benefits of coexisting within an agreed constitutional framework. The goal of such a project is to transform Sri Lanka’s political constitution – from one that embeds hegemony and antagonism to one that embraces freedom and equal citizenship.
