1. INTRODUCTION
Although considered by many to be a defining feature of liberal constitutionalism, religious neutrality is by no means a defining feature of constitutional law as a global practice. Forty-five percent of the world’s basic laws recognize one or more “favoured” religionsFootnote 1 and approximately half of the world’s population live under constitutional regimes that give special status and and/or protection to a single religion.Footnote 2 In many parts of the world, it is not religiously neutral constitutions that are most common, but religiously preferential ones. This is particularly true in the Buddhist-majority countries of Southern Asia, all of which have constitutions that give special status or protections to Buddhism.Footnote 3
Despite the commonness of religiously preferential constitutions, however, analysts frequently approach them as though they were aberrant. For many scholars, what appears most important about these texts is the ways they deviate from the expected secular prototype. This focus on deviance has come at the expense of critical reflection. When it comes to preferred-religion clauses, scholars have too often taken them at their word: they have treated these clauses as though they not only confirm the hegemony of a particular religious group, but also create institutional conditions that will extend that hegemony into the future.
This line of thinking can be seen with particular vim in liberal criticisms of Sri Lanka’s Constitution. Chapter Two of Sri Lanka’s Constitution, simply entitled “Buddhism,” contains a single article that gives to Buddhism the “foremost place” and obligates the state to “protect and foster” the institutions, practices, and teachings of the Buddha, collectively referred to as the Sāsana. Since the creation of these constitutional provisions in 1972, a variety of critics—from non-Buddhist politicians, to liberal secularists, to socialists, to international human rights groups—have identified this part of Sri Lanka’s Constitution as both proof and perpetrator of religious majoritarianism on the island.
There is some truth to this. Majoritarian constitutional provisions, like the “Buddhism Chapter” of Sri Lanka’s Constitution, do indicate something important about the relationship between religion and law, although mainly at the moment of constitution-writing: the guiding legal charter of Sri Lanka is marked by the sentiments of constitution drafters and lobbyists at the time of its creation. These sentiments include convictions that Buddhism should be supported and secured through law. Specifically, advocates of Sri Lanka’s Buddhism Chapter aimed to “restore” to the island a condition of Buddhist solidarity and vitality, which, they claimed, existed prior to the island’s colonial incursions. Through special legal protections for Buddhism, they hoped to “make Lanka’s Buddhist people into a strong and unified body once again.”Footnote 4
However, the goals of constitution drafters should not be confused with the effects of constitutional provisions. Constitutions—like Buddhists—have multiple lives. In particular, they have a pre-enactment life, in which they function as aspirational objects of elite political negotiation, and a post-enactment life, in which they function as a collection of rules and procedures that are treated as authorized principles for guiding a country’s shared political future. Religiously preferential constitutional provisions behave differently during each of these lives. Clauses that are designed to secure the integrity and wellbeing of one religious community may, once enacted as constitutional provisions, become vehicles for throwing that integrity and wellbeing into question.
This has been the case in Sri Lanka. Contrary both to the intentions of those who advocated for the Buddhism Chapter and to the expectations of those who opposed it, special protections for Buddhism in Sri Lanka’s Constitution have not simply supported the pre-eminence of Buddhism on the island. Outside of courts, as an element of popular discourse, the Buddhism Chapter may function expressively as a banner of Buddhist supremacy; however, inside the island’s courts, as an element of law’s technical apparatus, the Buddhism Chapter has had a different set of effects. Rather than solidifying a “strong and united body” of Buddhists as legal lobbyists hoped, the Buddhism Chapter has, in more than one case, aggravated and authorized splits among Buddhists. These splits have pitted one Buddhist organization against another, one monastic fraternity against another, and one Buddhist text against another. Splits have even occurred among trustees and incumbent monks within a single Buddhist temple.
The stakes of this argument extend beyond the shores of Sri Lanka. A close look at the unintended (and counter-intuitive) effects of Sri Lanka’s religiously preferential Constitution might suggest a more general trend: constitutional provisions designed to ensure the inter-religious dominance of one tradition may, under certain circumstances, actually amplify intra-religious conflicts over the nature, boundaries, and doctrines of that tradition. Moreover, the Sri Lankan case might also encourage scholars to rethink the assumed polarity between religiously neutral constitutions (the secular-liberal prototype) and religiously preferential ones. Although opposed in their expressive dimensions, religiously neutral and religiously preferential constitutions may in fact generate similar church-state conundrums. That is, the case of Sri Lanka might indicate that, in the same way as perfect religious neutrality is impossible,Footnote 5 so too is perfect religious supremacy.
2. THE CASE OF VEN. WIMALAWANSA
In what follows, I consider the impacts of Sri Lanka’s Buddhism Chapter through an investigation of a single court case, involving a Buddhist monk who tried to obtain a driving licence. The matter, although it may seem unremarkable, became an issue of some notoriety in Sri Lanka between 2004 and 2014, the years during which the case lingered in the island’s courts, and it continues to be discussed regularly in the Sri Lankan press as this article goes to press. By studying this case, one sees not only why the case became a cause célèbre, but also how the language of Sri Lanka’s Buddhism Chapter, along with the logic and protocols of constitutional litigation, came to transform a single, isolated affair into a highly acrimonious and highly public dispute over the parameters of proper Buddhism and Buddhist monastic life.
The case in question spanned ten years and involved multiple petitioners and respondents, along with numerous cycles of appeal and reversion from the Court of Appeals to the Supreme Court. The precipitating events were, however, quite straightforward. In May 2004, a Buddhist monk, Ven. Paragoda Wimalawansa Thero, chief incumbent of two Colombo-area temples,Footnote 6 applied for a driving licence at the Verahara office of the Commissioner of Motor Traffic (CMT). In an interview, as well in his legal submissions, Ven. Wimalawansa explained that he required a licence so that he could more efficiently carry out his regular ecclesiastical duties. These duties, similar to those of many monks in Sri Lanka, included preaching and receiving alms as well as a variety of other teaching obligations: Wimalawansa was an assistant principal and lecturer at a college 15 kilometres away.Footnote 7 He also served as deputy secretary of a regional Buddhist organizationFootnote 8 and taught at a variety of Buddhist Sunday schools (daham pasal).
Wimalawansa explained that, while he used public transportation regularly, he found it extremely difficult. Particularly frustrating was the fact that, as a monk, he was required to be at the temple for his only meal of the day, which, according to monastic law, had to be consumed before midday. This time-sensitive practice frequently clashed with late-running and erratic bus schedules. Taking matters into his own hands, Ven. Wimalawansa took steps to start driving himself. He attended driving classes and tried to acquire a car.Footnote 9 He even participated in a small Colombo-area monastic group called Ape Urumaya (“Our Heritage”), which was dedicated to addressing difficulties among monks including helping them get driving licences.Footnote 10 In June 2004, he met with an officer of the CMT to file his application for a driving licence, but was rebuffed; the officer explained that Buddhist monks could not be issued with driving licences.
Ven. Wimalawansa’s legal submissions describe how, upset by the officer’s decision, he returned to his temple and drafted several letters to the CMT officer protesting the refusal. When the officer failed to reply, Ven. Wimalawansa returned to the CMT office and requested to meet with the acting Commissioner of that office. Court records show that, after speaking with Ven. Wimalawansa, the acting Commissioner agreed to receive the monk’s application on one condition: the Commissioner would first seek advice from the Ministry of Buddhist Affairs, the government officer charged with assisting temples and supporting Buddhism on the island. Consenting to this arrangement, Ven. Wimalawansa wrote three letters to the Ministry arguing passionately that obtaining a driving licence did not violate Buddhist teachings. Yet the letters failed to convince the Commissioner of Buddhist Affairs, who instead asked for an opinion from an island-wide monastic council consisting of senior Buddhist monks.Footnote 11 That council concluded that it was inappropriate for monks to obtain a driving licence. The Commissioner of Buddhist Affairs relayed the decision to the CMT, who relayed it to Ven. Wimalawansa. The monk’s licence application would be refused. Buddhist monks, he was told, were not supposed to drive because doing so would violate traditional standards of monastic comportment. Therefore, by granting him licence, the office would be contravening the state’s constitutional obligation to protect Buddhism.
3. WHOSE RULES? WHICH BUDDHISM?
In general terms, the events of the Ven. Wimalawansa case mirror those of many legal contests: it began with a particular grievance, which was then channelled through the courts, where lawyers, judges, and litigants construed arguments for and against that grievance in terms of broader abstract, legal principles. Of note in Ven. Wimalawansa’s case is the array of parties and issues that became involved. On the one side was a Buddhist monk supported by roughly 15 other Buddhist monks citing, among other things, the state’s constitutional obligations to Buddhism to argue that he should be granted a driving licence. On the other side were government administrators and other Buddhist monks invoking the same constitutional obligations to argue that Ven. Wimalawansa should not be issued with a driving licence.
That monks would argue with each other over the standards of Buddhism and monastic comportment is not surprising. Debates about what monks should and should not do have a long history on the island, as well as in other parts of the Buddhist world. A variety of Pali and Sinhala sources provide accounts of historical controversies (Sinhala: vādaya) over how the community of monks, the sangha, ought to act, dress, eat, preach, chant, and engage with texts.Footnote 12 In the nineteenth and twentieth centuries, Sri Lankan monks and lay Buddhists argued regularly about the appropriateness of monks engaging in “worldly” (laukika) practices, such as propitiating deities, teaching in public schools, practising Ayurvedic medicine, and doing astrology. Sri Lanka’s colonial and, later, independent governments enacted a series of ordinances to regulate monks’ abilities to acquire and alienate property. By issuing these ordinances, they aimed to prevent monks from treating monastic property as a source of wealth, while encouraging them to focus their energies on contemplation, preaching, and “other-worldly” (lōkōttara) affairs—those things associated with gaining a better rebirth and, ultimately, enlightenment.Footnote 13 Major reports on Buddhism produced in the 1950s by government and civil society groups eulogized this lōkōttara monastic ideal and devoted entire sections to outlining legal and institutional devices for preventing monks from participating in employment, politics, and other laukika matters. Since 1931, in fact, the state has enforced the barrier between monastic and secular vocations both ways: Sri Lankan law makes it a criminal offence for any person who has not been ritually ordained as a monk to wear orange monastic robes.Footnote 14
This ideal of the serene, cloistered, other-worldly monk striving quietly for enlightenment did not go unchallenged. Throughout the twentieth century, influential and vocal groups of monks spoke out against what they saw as attempts to limit the influence of monks on society. In one important episode in the 1940s, monks from one of the island’s most important monastic colleges publicly challenged the most powerful politician at the time, D.S. Senanayake, in demanding recognition of monks’ right to participate in politics as lobbyists, campaign volunteers, and even (in some cases) political candidates.Footnote 15 Since that time, Sri Lanka’s monks have asserted their rights to participate in almost all spheres of society: from education, to social work, to politics. Since 2004, a number of robed monks have served as members of Sri Lanka’s parliament.
Debates over proper monastic conduct persist in Sri Lanka, in large part, because there is no island-wide ecclesiastical body with the power to determine or enforce monastic discipline for all monks. Sri Lanka has no single, unanimously accepted monastic hierarchy, a national sangha, which might act as the final arbiter for Buddhist orthodoxy. Scholars of Buddhism will not find this entirely surprising. For most of Buddhist history, the ideal of a stable and centralized ecclesiastical hierarchy was achieved only incompletely and only through the heavy-handed efforts of powerful kings who, through a mixture of patronage and coercive power, worked to preferentially support one “pure” group while branding others as heterodox. Even in those cases, however, reform movements and other challengers continued to exist. The few national monastic hierarchies that one sees in the contemporary Buddhist world—such as the council of great monks (mahathera-samakhom) in Thailand—are of relatively recent origins. These hierarchies also emerged from (and continue to depend upon) acts of coercion and control by the state designed to prevent schism and deny legitimacy to other monastic groups who claim their own forms of autonomy and authority.Footnote 16
In the Buddhist-majority countries of Southern Asia today, Sri Lanka’s sangha remains more decentralized than most, containing many different claimants to Buddhist authority. Unlike the government of Thailand (and, to a lesser extent, the governments of Myanmar Cambodia and Laos), the Sri Lankan government has failed in its efforts to create a single, national council of monks representing all sects. Nor has it standardized or codified any of the many written and oral codes of conduct (katikāvata) to which the island’s monks adhere.Footnote 17 A variety of monastic and lay groups in Sri Lanka claim the right to interpret and act on behalf of Buddhism. Among those with the broadest credibility are the two chief monks of the island’s oldest monastic fraternities (the Malvatu and Asgiri branches of the Siyam Nikaya), located in Kandy, the site of the island’s last Buddhist kingdom. These two mahānāyaka-s, or great leaders, control a disproportionately large number of the island’s temples and temple-lands.Footnote 18 They also appear regularly in the newspaper consulting with politicians, civil society leaders, and other monks over matters of Buddhism. Yet monks often challenge their authority. In the last 200 years, dissatisfied monks have developed many new semi-autonomous chapters (pārśava) within the Asgiri and Malvatu branches of the Siyam Nikaya. Others have broken away from the Siyam Nikaya entirely to form new monastic fraternities.Footnote 19
A variety of competing interests and interpretations of Buddhism define this decentralized monastic constellation. Principles of division include strong allegiances to particular senior monks, regional affiliations, and even caste identities.Footnote 20 Also in competition for authority over Buddhism are lay Buddhist organizations who claim for themselves the right to interpret the texts of Buddhism directly.Footnote 21 Finally, there are government representatives—the president, the Commissioner of Buddhist Affairs, and others—who also at times speak and act on behalf of Buddhism.
In drafting the Buddhism Chapter, Sri Lanka’s constitutional designers tried to accommodate the non-hierarchical nature of Buddhist authority by giving Buddhism the “foremost place” rather than calling it the “state religion.” Where “state religion” (S: rajyāgama) seemed to imply substantial government power over Buddhism, the phrase “foremost place” eschewed any indication of where the proper sources of Buddhist authority lay. Drafters agreed to the phrase largely as a way to help sidestep contentious disputes among law-makers and lobbyists over how much authority, if any, the state ought to have over Buddhism and Buddhist monks.
4. BUDDHISM #1: VEN. WIMALAWANSA’S PRAGMATIC BUDDHISM
In making his petition, Ven. Wimalawansa was challenging certain conventions. Buddhist monks did not normally drive cars in Sri LankaFootnote 22 and Buddhist texts said nothing about driving licences. Neither fact deterred him. In interviews and legal submissions, Ven. Wimalawansa argued for the necessity of adjustment and change within the Buddhist tradition. Buddhism, he argued, was not a static entity, but a dynamic one designed to develop and accommodate new situations. Defending this position in a written submission filed in 2008, Ven. Wimalawansa highlighted a well-known passage in the Pali story of the Buddha’s death and attainment of final nirvana (or “extinguishing”), the Mahaparinibbana Sutta. In that story, the Buddha, on his deathbed, instructs his chief disciple, Ananda, as follows: after his passing, the monks should hold onto the major principles of monastic life but to “abolish the lesser and minor precepts.”Footnote 23 However, the Buddha never specifies which principles are which. According to Ven. Wimalawansa, this is precisely the point: the Buddha never intended monastic life to progress unchanged, in frozen form, oblivious to or segregated from technological and cultural changes in society. Rather, Ven. Wimalawansa argued, the Buddha intended that monastic life should move with society, developing and adapting accordingly. Monks’ driving, he suggested, was just that sort of adaptation that the Buddha had in mind.
Among the documents submitted with his petitions, Ven. Wimalawansa included a personal letter which he had written to the CMT in 2004. In this document, now a matter of public record, one sees very clearly this progressive view of Buddhism. In the letter, Ven. Wimalawansa insists that “there are some people do not want monks progressing forward (idiriyaṭa yanavā) with society. What they want is to hold monks back in the 6th century while they go into the 21st century.”Footnote 24 These people, Ven. Wimalawansa argues, do so in the name of defending culture (saṅskṛtiyak) and custom (sampradāyak). Yet he describes culture and custom as worldly (laukika) in nature and therefore disconnected from, rather than binding on, lōkōttara vocation of monks.Footnote 25 Monks, Ven. Wimalawansa urges, must remain above culture and custom in order to help guide society towards what is good (yahapat). Ven. Wimalawansa reports that true monks eschew custom and culture for broader concerns with good and bad (honda naraka), virtue and vice (yahapata ayahapata), and what is to be done and not to be done (kaḷa yutta nokaḷa yutta). Ven. Wimalawansa expressed an understanding of Buddhism in which monks helped to transform society and culture; in this project, minor monastic rules and customs could be subordinated to the heroic pursuit of larger, other-worldly (lōkōttara) goals.
In Ven. Wimalawansa’s vision of Buddhism, clinging to static conventions not only undermined the project of virtuous leadership; it transgressed the basic principles of the Buddha’s teaching itself, the dhamma. In his original letter to the Commissioner of Motor Vehicles written in 2004, he asserts:
In the present era, a monk driving a vehicle is not contrary to the dhamma (dharma virōḍha). Nor is it against the code of monastic discipline (Vinaya). In fact, [not permitting it] would contravene dhamma and Vinaya. The teaching of the Buddha is a based on the principles of the trilakṣana [the three marks of existence]. Buddhism teaches primarily that everything is impermanent and changing and that nothing in this world is permanent. [It teaches] that with every moment all things are changing. [It teaches] that the essence (svabhāva) of all things is becoming, existing and perishing …. A monk will not lose [his] monkliness (bhikśutvaya) for driving a vehicle. No evil (pāpā) would accrue. There [would be] no violation of the Vinaya rules.Footnote 26
In his letter, Ven. Wimalawansa points out that the Buddha, himself, emphasized the inevitability of change. Like all things in the world, the monk reasoned, monastic discipline (Vinaya) was also subject to change. Drawing upon Vinaya texts, Ven. Wimalawansa argued that the Buddha had asked monks to reject only four particular types of activities: the major pārājīka offences of the Vinaya, which normally lead to a monk’s expulsion from the order. These serious offences include sexual impropriety, killing a person, stealing, and improperly claiming spiritual attainments. Other guidelines for monastic conduct, the letter implied, could be changed and re-evaluated with changing times.
Ven. Wimalawansa’s written submissions presented Buddhism as a pragmatic tradition, a realistic philosophy (yathārtha darśanaya) that recognized the need to be flexible in light of changing realities. This pragmatic understanding of Buddhism appeared prominently in another letter that Ven. Wimalawansa wrote to the Commissioner of Buddhist Affairs, which he submitted as evidence. Here, Ven. Wimalawansa argued that changing technological conditions necessitated changing approaches to thinking about Buddhist orthopraxy. For monks to survive in the contemporary age, they had to adopt modern ways of life. In the past, Ven. Wimalawansa insists, monks were supported completely by the laity. Today this support had diminished, requiring monks to earn income, perform maintenance around the temple, and, in some cases, even cook their own food.Footnote 27 Ven. Wimalawansa argued that it was these modern-day burdens that required his being able to drive. Monks like him were no longer simply full-time specialists in dhamma, ritual, and self-cultivation; to sustain themselves, they had to work as teachers, administrators, even cooks. They reluctantly took on laukika commitments and those commitments were necessary to sustaining their lōkōttara pursuits. According to Ven. Wimalawansa, for ordinary monks living in ordinary Buddhist temples—temples without the wealth and resources of the island’s mahānāyaka-s—driving a car was not a luxury, but a practicality.
Ven. Wimalawansa’s petition gained backing from a variety of monks and Buddhist laypersons from around the island. He submitted letters from these supporters to the court as evidence. In one letter, the head monk of one Buddhist “protection” association argued that monks’ driving constituted a logical next step in a series of historical progressions through which monks adjusted their lives to modern technology. When motor cars were first imported, he recalled, people debated whether or not monks should be allowed to ride inside them; today, monks frequently ride in them. He also pointed out that similar debates had taken place decades ago over the question of whether televisions should be permitted at Buddhist monasteries; today they are common. In both cases, new technologies changed monastic life and had become regular features of modern monastery life. Those features helped modern-day monks manage their busier schedules.Footnote 28 Along with other supporting letters from monks, the head monk’s letter implored the court to look outside the customs of Sri Lanka: monks in other modern countries—Malaysia, Singapore, and the US—regularly operated automobiles.
Many of Ven. Wimalawansa’s supporters defended monks’ driving on economic grounds. One letter from Ven. E. Sumanasiri Thero, the senior monk and principal of a monastic training centre (pirivena) near Kurunegala, argued that, by denying monks the ability to drive cars, the Sri Lankan state was, in fact, placing a greater financial burden on local Buddhist communities. Lay Buddhists were forced to pay costly car-hire fees in order to transport monks to their residences for rituals.Footnote 29 Ven. Sumanasiri argued that, even when the temples owned cars as part of their monastic property, the cost of employing a driver was often prohibitively expensive, meaning that some of those vehicles were not used.Footnote 30 The texts of supporting letters and legal submissions indicate that these economic reasons weighed heavily on the minds of those who supported Wimalawansa. Interviews with the Buddhist monks who joined Wimalawansa’s case as co-petitioners confirmed this further: in their eyes, driving licences might be unnecessary for monks living in wealthy monasteries, but they were essential for monks at less prosperous temples.Footnote 31
5. BUDDHISM #2: OPPONENTS’ TRADITIONALIST BUDDHISM
Ven. Wimalawansa’s submissions evoked a vision of Buddhism as an adaptive religion, which, while oriented around certain core principles, accommodated and responded to the changing conditions of modern society. Ven. Wimalawansa’s opponents cast Buddhism in different terms. Their submissions portrayed Buddhism as a more structured tradition, which was defined by an opposition between worldliness and other-worldliness (laukika and lōkōttara) and a strong contrast between lay and monastic life. These ideas appeared clearly in the legal briefs filed by the multiple parties who served as respondents to Ven. Wimalawansa’s petition. These parties included the CMT and the Commissioner of Buddhist Affairs (represented by the Deputy Solicitor General) as well as two important groups of senior monks and the council of lay trustees, or Dāyaka Sabha,Footnote 32 of one of Ven. Wimalawansa’s own temples.Footnote 33
For those who opposed Ven. Wimalawansa, driving monks posed a serious threat to the purity and continuity of Buddhism in Sri Lanka. In a letter to the Minister of Buddhist Affairs, submitted as evidence, the lay trustees of Ven. Wimalawansa’s temple implore:
Honorable Minister, the only place in the entire world where Buddhism exists in its uncorrupted (nirmala) form is here on this tiny island; [therefore] care has to be taken by Buddhists [here] to keep this uncorrupted form of Buddhism for a very long time. It is mainly because of their restrained and calm demeanor (saṅsun iriyav) and their attractive behaviour (ākarṣanīya aevatum paevatum) that Buddhist monks gain the faith (bhaktiya), loving respect (gauravādaraya), faith and admiration (pahan sita Footnote 34) of the Buddhist people. If this ultimate bond (uttarītara baendīma) between the Mahasangha (great community of monks) and lay people is strained, then without a doubt the supreme status of Buddhism would topple in no time. If the Mahasangha begin to drive vehicles, then there is a risk of the lay people loosing the confidence (pahan bava) they had for them.Footnote 35
The letter presents the state’s constitutional duties to protect Buddhism as duties to maintain a pure tradition—a tradition that was “uncorrupted” (nirmala) in Sri Lanka alone. In purposeful contrast to Ven. Wimalawansa, the trustees asserted that the key to Buddhism’s survival on the island was not its adaptability, but the continuity of enduring bonds between monks and laity. These bonds were, in turn, based on fragile relationships of exchange: monks earned the respect and admiration of laypeople by virtue of their ability to exude calmness, equanimity, and disciplined detachment from the worldFootnote 36; the laity gained merit and wisdom by supporting monks. In this vision of Buddhism, other-worldly (lōkōttara) and worldly (laukika) concerns existed in a relationship of tension. Worldliness threatened the sangha and this, in turn, put the reciprocity between the sangha and the laity, which was the basis of Buddhism, in peril. Rather than Buddhism guiding and responding to changes in society, Buddhism—particularly the pristine Buddhism of Sri Lanka—was something to be preserved in a pure form in the face of a changing society.
This understanding of Buddhism gained support from an influential group of six senior scholar-monks who had written to the Commissioner of Buddhist Affairs condemning Wimalawansa’s petition (which had, by this time, gained widespread public notoriety). All of the monks were chief prelates or deputy-chief prelates, mahānāyaka-s and anunāyaka-s, of particular monastic fraternities. They were also board members of one of the most important and prestigious Buddhist projects on the island: the publishing and critical editing of the Pali Tipitika, the “three baskets” of wisdom that form the core of Theravada Buddhism’s textual tradition. The board members wrote both as senior monastic figures and as recognized authorities on monastic comportment, or Vinaya (which formed one of the three baskets of wisdom). In their letter,Footnote 37 the board members acknowledged Ven. Wimalawansa’s argument that there was no specific rule against driving motorcars. However, they countered, the absence of this particular prohibition did not mean that monastic life should take up all the conveniences of modern technology. Rather, they argued, one ought to consider the matter of driving licences in light of another broad principle that ran centrally through the entire Vinaya corpus: the concern with eliminating any negative public image of monks in society. Thus, they argued:
[Vinaya rules] were assigned as a result of popular displeasure over the unsuitable conduct [nogaeḷaepena kriyā] of monks in society. Public displeasure created by these actions can be seen in many of the background stories in the Vinaya precepts. For example, in [phrases such as the Pali] “Manussa ujjhayanti” [the people were angry], “Kheeyanti” [they were frustrated], “Vipachenti” [they were irritated]. These days, as well, a Buddhist who is devoted to the Sasana wouldn’t approve Buddhist monks’ driving. In elaborating the precepts for monks, Lord Buddha took into consideration several social criteria (samāja nirṇāyaka) Among these, there are ten reasons highlighted within the Vinaya Pitaka. Included among these are the following two: pleaseFootnote 38 (paehaedīma) those [laity] who are not pleased and [please] further those who are already pleased (“[Pali] appasannānaṃ vā pasādāya, pasannānaṃ vā bhīyobhāvāya”).Footnote 39
As with the above letter from the Dāyaka Sabha, the Tipitka Board’s letter highlighted not only the importance of conserving long-standing conventions of monastic conduct, but the signal importance of monks’ duties to conduct themselves in ways that please and impress the laity. If the Dāyaka Sabha warned that driving monks would breach the reciprocity between laity and the sangha, the Tipitaka Board made an even stronger claim: keeping and maintaining the respect of the laity was one of the key organizing principles of the Vinaya Pitaka itself. Therefore, driving monks threatened not only individual rules, but the entire spirit and purpose of monastic law. Allowing monks to drive would not only damage the status of the sangha in society; it would fragment Buddhist life and, in so doing, create the conditions for “various forces” (vividha balavēga) to rise up (naengenavā) against Buddhist society.Footnote 40
6. CITIZEN OR BHIKKHU?
Ven. Wimalawansa’s case was not just a matter of Buddhist law. Had this been the case, it might have been addressed by one of the island’s monastic tribunals (adhikaraṇa sabha-s) or executive committees (karaka sabha-s) that normally hear plaints and make rulings about monastic behaviour for individual fraternities. These intra-fraternity rulings are not normally enforceable by the Sri Lankan government unless they involve the control of temple property,Footnote 41 in which case the initial monastic decision may be appealed or reheard by civil courts. Civil courts then adjudicate those cases in accordance with a specially designed statute (called the Buddhist Temporalities Act) and a special strand of Sri Lankan case-law called Buddhist Ecclesiastical Law.Footnote 42
Ven. Wimalawansa’s case was different. It involved not only questions concerning the interpretation of Buddhism, but questions concerning the links between Buddhist law and constitutional law. If Buddhist authority resided with monks—a point on which both sides appeared to agree—what role did state agents (in this case, non-monks) have in enforcing Buddhist norms? Buddhist monastic life employs elaborate rituals, habits of dress, and codes of conduct to distinguish monks from laity. Sri Lankan statue law even makes it legal offence to “pass oneself off as a monk.” How did the monk-lay distinction fit with a constitutional framework that also espoused equality under the law?
The question of whether monks are considered citizens for the purposes of state law has occupied Buddhists throughout the world. The question arises in reference to a variety of issues. In Theravada-majority countries,Footnote 43 all of which give special constitutional status to Buddhism, special laws often apply to the education, finances, and registration of Buddhist monks. In Sri Lanka, for example, monks who are found guilty of criminal offences must disrobe before going to prison. That is, they must become normal citizens again before undergoing penal sanctions. From the 1940s to the early 1970s, throughout most of the Buddhist world (although not in Sri Lanka), Buddhist monks (and in some cases nuns) were banned from voting.Footnote 44 Two countries—Thailand and Myanmar—still enforce this rule today. In designing these laws, political elites posited a necessary opposition between the legal status of monks and that of normal citizens. As U Nu, the former prime minister of Burma, succinctly put it, “a [monk] is not like a man”; his concerns ought not to be with exercising his rights as a citizen, but with “self-purification … discipline and penance”—activities which do not sit easily alongside the world of political engagement.Footnote 45
Was Ven. Wimalawansa a monk or a citizen? Ven. Wimalawansa’s case generated opposing answers to that question. In his submissions, Ven. Wimalawansa made it clear that his status as a monk was distinct from, but did not nullify, his status as a citizen. He argued that monks were both clerics and citizens; therefore, they ought not to be burdened more than other citizens nor deprived of rights enjoyed by other citizens:
I state that I applied to the Commissioner of Motor Traffic in the capacity of a Sri Lankan citizen for a driving license and not as a Buddhist Monk. I state that if the Petitioners were concerned about Damma [sic] and Vinaya being violated by me by obtaining a license then they should take steps regarding me continuing to be a monk urging the same before appropriate [monastic] authorities .… I respectfully state that just because I am monk [sic] I cannot be prevented from enjoying my rights guaranteed to me by the legislature of this country … by way of the Motor Traffic Act. I further state that the Petitioners or any other authority has no right whatsoever to deprive me of my rights that has been granted to me by the legislature of this country .… I state there is no law in Sri Lanka to cancel a driving license obtained by a Buddhist Monk [either] before becoming a monk [or] consequent [sic] to him becoming a monk. Therefore I reiterate that I have been deprived of my rights.Footnote 46
In Ven. Wimalawansa’s view, monks interacted with state services and state laws such as the CMT not as representatives of Buddhism, but as citizens like anyone else. In Ven. Wimalawansa’s estimation, to be treated only as a representative of the island’s protected, “foremost” religion was to be held to an unfair (and extra) standard of scrutiny.
This argument about the legal status and identity of Buddhist monks appeared clearly in the submissions made by Ven. Wimalawansa’s monastic and lay supporters. A letter from Ven. Dankande Bodhiwansa Thero, director of a social work organization and chief incumbent of a temple near Colombo, accused the CMT of violating Ven. Wimalawansa’s “human rights”Footnote 47 and pointed out that there is no separate category of persons in law for Buddhist monks. The letter also called attention to the fact that, since 2004, Sri Lankan monks had served as members of parliament. A letter from another senior monk argued that “a monk too is a citizen of this country and he is subjected to all the laws of this land,” including requiring him to pay taxes on income.Footnote 48 A supporting letter from a police Sargent from Kandy further made the point: as a law enforcement officer, he assured the court that no special legal limitations applied to monks or other religious leaders when it came to the operation of motor vehicles.Footnote 49
According to the submissions of Ven. Wimalawansa and his supporters, monastic norms and state law were distinct; and monks, by virtue of their simultaneous status as clerics and citizens, were subjects of both.Footnote 50 Yet, these submissions suggested, the structures of law were separate, not overlapping. State officials—who were lay people—had no authority to defend or enforce monastic law. They also had no right to deny monks’ rights as citizens and subjects within state law. When monks approached agents of state authority (such as the CMT), they did so as unmarked citizens, not as subjects of a special type. Those agents were, therefore, required to treat them as they would any other citizen and not apply extra burdens to them.Footnote 51 Monastic law and Buddhist norms were therefore doubly out of bounds to state agents according to these submissions. Not only did state officials have a positive duty to uphold impartially all state laws; they also had no authority to pronounce on the activities of Buddhist monks or the principles of Buddhist doctrine. In this way, Ven. Wimalawansa’s position touched on a variety of hallowed principles for jurists and monks: for jurists, it spoke of nondiscrimination, equal enforcement of law, and rights of citizens; for monks, it spoke of clerical autonomy and the idea that Buddhist law ought to be the province of monks rather than bureaucrats.
Ven. Wimalawansa’s opponents concurred that state laws and Vinaya laws ought to remain separate, yet they refused the idea that one could choose which one applied. Monks, they insisted, were always primarily subjects of Vinaya because Vinaya and state laws were not parallel systems of law, but overlapping ones. When it came to the conduct of monks, Vinaya laws were the primary structures of regulation; fundamental rights guarantees did not nullify Vinaya obligations. A letter from the four head monks of the island’s four largest monastic fraternities explained this position through analogy to the work of judges and lawyers: just as judges and lawyers were bound by stringent professional codes of conduct, which did not apply to ordinary citizens, so too were monks subject to Vinaya rules.Footnote 52 The senior monks of the Tipitaka Compilation Board took a similar approach, arguing that the matter of monks driving cars fell firmly within the jurisdiction of monastic law, not national or international human rights. “The laukika path [of human rights law] is one thing,” they wrote, “the lōkōttara path [of Buddhist monks] is another.”Footnote 53 There was no conflict of laws. Vinaya rules, alone, applied to matters of monastic comportment, not domestic or international law.
Where state law did come into play, in the senior monks’ estimation, was in the obligation under the Buddhism Chapter of the Constitution to protect the standards and rules of Buddhism. The four senior monks contended that the state had a clear constitutional obligation to countervail what were obviously the “anti-Buddhist activities (śāsana virōdha kriyā)” of Ven. Wimalawansa. The Tipitika Board argued that, if the CMT ignored the conventions of Buddhist monastic law and treated Ven. Wimalawansa as it did all citizens, he would be undermining his constitutional obligation, as an officer of the state, to protect Buddhism because he would be “making un-Buddhist and un-monastic conduct into [something] approved by law itself” (aśāsanika aśrāmaṇika kriyāva sammata karīma nītiyen ma)!Footnote 54
7. THE COURT’S DECISION
Final judgment on Wimalawansa’s case came in March 2014. The verdict was handed down by a unanimous two-judge bench of the Court of Appeals. In the judgment, written by Justice Anil Goonaratne, the court rejected Ven. Wimalawansa’s application in strong and decisive terms. The logic of judgment reflected the arguments of Ven. Wimalawansa’s opponents: the court agreed that the state had a constitutional obligation to protect the uncorrupted (nirmala) Buddhism of Sri Lanka, and it affirmed the dicta of the mahānāyaka-s (senior monks) and the Tipitika Board. It also upheld the idea that the state ought to enforce Vinaya prohibitions. As it related to the question of monks’ identities as citizens versus as representatives of Buddhism, the court clearly indicated that a monk’s civil and legal status was different to that of a layman.
The court’s decision aligned with the asymmetries of power that formed the backdrop of the case. Although a variety of monastic and lay supporters backed Wimalawansa’s petition, the idea of driving monks was opposed by government officials (represented by the Attorney General) and by some of the island’s most influential monastic leaders. Moreover, Ven. Wimalawansa was a single monk of limited means (his attorney took the case pro bono) challenging a long-standing status quo. In its opinion, the court validated the arguments of Ven. Wimalawansa’s opponents in decisive language, even insisting, in one particularly strong flourish, that “a Buddhist Monk [capitalized in the original] cannot do and should be prohibited from doing any and every act, done by a layman, in his daily routine life.”Footnote 55 The opinion portrayed monastic life as not just different from lay life, but “inconsistent to [sic] that of a lay person.”Footnote 56 For the court, perhaps even more than for the Tipitika Board or the mahānāyaka-s involved in the case, “the life of a Buddhist Monk in its pure form, is incompatible with lay life.”Footnote 57 If Ven. Wimalawansa was not prepared to live in that way, the court insisted, “it is better [for him] to give up robes.”Footnote 58
The court’s judgment provided a temporal endpoint to legal dispute, but it also generated new lines of tension. One reason for this is that, in deciding the matter, the court exercised its own authority to speak for Buddhism. In legitimating his judgment, Justice Gooneratne (writing for the court) referred partially to the letters written by the senior monks against Ven. Wimalawansa’s petition, but he also relied heavily on two other types of sources: scholarship and case-law from former Sri Lankan Supreme Court judges and his own interpretations of Buddhist texts. In his use of these varied sources, Justice Gooneratne displayed confidence in his role as interpreter of Buddhism. Gooneratne’s opinion discussed Buddhist philosophy and offered exegeses of the doctrine of the “middle way.”Footnote 59 Drawing upon a book by a former Sri Lankan justice, C.G. Weeramantray, called Tread Lightly on the Earth, Justice Gooneratne wrote about the importance of morality, wisdom, and mental cultivation. Analyzing nearly 20 lines from the Digha Nikaya as well as three long sets of verses from the Dhammapada, the judgment considered the meaning of the Buddha’s eightfold path.Footnote 60 The result was that, in the end, the court’s decision (its form, content, and authorial voice) seemed to contradict certain core convictions of all the parties involved in the matter: it placed a layperson in the position of explaining Buddhist doctrine to monks; it positioned a laukika institution as an authority on the requirements of a lōkōttara life.
The fault was not Gooneratne’s. Almost all of the legal experts with whom I spoke described Justice Gooneratne as a respected and serious judge and a pious Buddhist.Footnote 61 While his judgment indulges in certain flourishes of Buddhist scholarship, it also reflects the predicament in which the court found itself: constitutional litigation placed Gooneratne, writing for the court, in the position of acting as a Buddhist expert. Buddhism Chapter litigation forced the court to arbitrate a dispute between two groups of monks with distinct interpretations of the tradition. This fact was not lost on those who won the case. Even the most outspoken critics of Ven. Wimalawansa, the lay trustees associated with one of his temples, felt considerable discomfort with the outcome. The following is an excerpt from a group interview conducted nine months after the verdict:
Q: Do you see any problem with the court [in its decision] telling a monk [Ven. Wimalawansa] what to do?
A: We are terribly hurt by this. We don’t like any member of the laity, the court or even the king telling monks what to do. In this regard monks should behave in such a way that avoids such circumstances. It is a mark of disgrace for monks. Within the social hierarchy monks occupy the highest position, even above the king. There is even a story of a Samanera (novice monk) who sat on the king’s throne …. [Monks] are not given this type of respect at the courts; they are treated as lay people.
Q: You went to court to protect Buddhism. But going to court is also a threat to Buddhism because it allows the judge to act as an authority over Buddhism?
A: Yes, we agree with you. That’s what we said. But we had to go to court because of this monk’s misconduct. Monks should behave in such a way that prevents them from going to court. [However] Ven. Wimalawansa should have at least sat in the front row. He did not even do that. We were the ones who sat in the front row of the court and he sat behind us. We didn’t like this …. At the same time we needed to protect the [Buddha] Sasana as well.Footnote 62
The interview excerpt reveals the exasperation felt by participants on account of deep incongruities among the goals and effects of litigation. Pursuing constitutional protections for Buddhism generated disconcerting dilemmas of authority and orthodoxy for the Buddhists involved in the case. By using law to protect certain features of Buddhism, participants ended up violating other features Buddhism. It did not matter who won the case. Both sides would have faced inevitably the same double-bind.
8. CONCLUSION: THE IMPOSSIBILITY OF PROTECTING BUDDHISM
Jacques Maritain, one of the architects of the United Nations’ Universal Declaration of Human Rights, reputedly quipped that the drafters of the Declaration agreed on its contents only on the condition that no one asked them about why they agreed.Footnote 63 That is, they could agree on particular principles but not on the meaning of or rationale behind those principles. The same could be said about drafters of the Buddhism Chapter: those who incorporated special protections for Buddhism into the Constitution saw this as a good thing, even if they did not agree on precisely what they were protecting. The problem is that vague consensus around abstract principles works only as long as those principles remain abstract. Once they are defined in courtrooms, the very same words that serve as signs of agreement become sources of interpretive competition.
From one perspective, this is nothing new. Law generates these conundrums all the time: people disagree about the meanings of freedom, equality, neutrality, and a variety of other constitutional principles. Judges and legislatures interpret the meaning of those principles over time, to suit the times. The inevitable ambiguity of language is managed or mitigated through the interpretive discipline of stare decisis and, in some cases, statutory definitions.
Yet, religion, or Buddhism, is not quite the same as abstract ideas like equality or freedom. Religion and Buddhism suggest not simply aspirational social conditions, but a shifting amalgam of institutions, ideas, persons, texts, properties, practices, and customs. In short, they imply things both abstract and concrete. Unlike freedom or equality, legal, religious, and popular discourses treat Buddhism (and, often, religion) as an agent: an observable thing in the world that, like a citizen, can be acted upon, harmed, or protected. As used by parties in the Ven. Wimalawansa case, Buddhism has a distinct solidity to it, a flavour of personhood, with all the complexities that implies.Footnote 64
When it comes to special constitutional protections for religion, the problem is not simply one of semantic ambiguity and competing interpretations. A more general dilemma stands at the heart of special constitutional protections for Buddhism or other religions. On the one hand, these clauses claim to secure the protection or primacy of one set of (religious) institutions. On the other hand, they do so using mechanisms that perform the supremacy of another set of (state) institutions. Religiously preferential constitutions purport to create an arrangement of mutual support between presumptively separable elements. However, this support can never be perfectly achieved because, in constitutional regimes, state-legal authority constitutes itself not only as that which protects religious authority, but as that which defines it: if constitutions announce the state as protector of religion, constitutional courts require the state to define the nature of the religion to be protected. In mirror fashion, claimants to religious authority justify their status within and autonomy from these state-legal regimes by asserting a privileged access to alternative sources of knowledge and power—sources that, by definition, exist outside of the nation-state. Therefore, in the absence of pure and uncontested theocracy—a very rare feat—constitutional protections for religion cannot but transgress certain features of religious membership, authority, or practice. In enforcing constitutional protections for religion, states can never hand off responsibility for religion to religion: in protecting and empowering (what they determine to be) legitimate representatives of religion, state agents necessarily transgress the very claims of autonomy and authority on which those representatives depend.Footnote 65
This conundrum both initiated and concluded the Ven. Wimalawansa case. Ven. Wimalawansa treated the idea of a government official (a layperson) pronouncing on the orthodoxy of his (a monk’s) actions as an attack on Buddhist authority and autonomy. Similarly, those Buddhists who opposed Wimalawansa may have received a favourable ruling by the Court of Appeals, but the very logic and interpretive licence shown in that ruling ultimately undermined their claims of independence and authority over Buddhism. This caused some of the winners in the case to feel harmed by the logic and assumptions that undergirded the decision.
In this way, religiously preferential constitutions are no different than secular ones. What Hussein Agrama says of “secular power” one could say analogously for religiously preferential legal regimes.Footnote 66 Just as secular power continuously provokes and entangles states and citizens with the very questions of definition it claims to resolve (namely questions of the line between religion and politics), so too do religiously preferential constitutional orders provoke and entangle states and citizens with the questions they claim to resolve (questions about the conditions of—and possibilities for—the state protection of Buddhism or other religions). Put differently, the very constitutional clauses used to secure the integrity of Buddhism provide the conditions under which that integrity is constantly rendered under threat. Protecting Buddhism in constitutional law, while it may announce a particular hierarchy among religions, also generates conditions for sharp contests over the boundaries of membership, orthodoxy, and authority.
Let me be clear: the particular contours of the Ven. Wimalawansa debate were not generated because of law. As stated above, Buddhist monks and laypersons have disputed the principles of Buddhism for centuries. Debates over Buddhism pre-exist legal action. However, the framework of legal action is not simply a rehashing of long-standing debates. The format of litigation—in which petitioners face off against respondents in an agonistic struggle over remedies—amplifies the rigidity of disputes and the firms up lines of opposition. Participants in the Ven. Wimalawansa case lined up, by necessity, for Ven. Wimalawansa’s vision of Buddhism or against it. Once the motors of legal action began revving, each side gripped more tightly to their vision and engaged in a point-counterpoint methodical rejection of the other’s position. This process obscured previously existing principles of compromise or co-ordination, such as litigants’ shared commitment to protecting the autonomy and authority of Buddhist monks to pronounce on ecclesiastical matters.
Litigants also produced a range of new and ramified arguments as the case progressed. This self-multiplying quality of legal argumentation can be seen in the fact that, by the end of the affair, Ven. Wimalawansa offered a number of rationales for why he should be granted a driving licence, some of which came to conflict logically. For example, at the beginning of the case, Ven. Wimalawansa insisted that he needed to drive in order to fulfil his religious obligations to minister, teach, and conduct Buddhist rituals; to refuse him a licence was therefore to limit Buddhism through limiting the work of Buddhist monks. Yet, as the case progressed, Ven. Wimalawansa seemed to undermine this argument in stressing a differing claim: he insisted that his application to the CMT was not made as a monk, but as a generic citizen; the refusal, therefore, violated his generic fundamental rights.Footnote 67 Inconsistencies such as these are not faults of constitutional (and legal) argument, but regular features of them: to win a case, litigating lawyers routinely offer as many arguments as possible related to as many legal principles as possible, in a buckshot attempt to influence judges and juries. Thus, legal arguments not only deepen and sharpen debates; in many cases, they also project debates into ever broadening terrains of disagreement, locking litigants in competition on multiple fronts.
When it comes to protecting Buddhism in Sri Lanka, the effects of constitutional litigation have undermined the goals of constitution-making. Legally successful attempts to use the Buddhism Chapter to protect Buddhism have had undesirable consequences: they have contributed to the fracturing of solidarity among Buddhist groups and to the undermining of monastic authority. In the process of fostering Buddhism, constitutional agents have transformed low-intensity, ambient differences of opinions among monks into public, high-stakes, agonistic conflicts over Buddhist orthodoxy and orthopraxy. Favouring Buddhism in law has provoked and intensified many of the problems it was meant to resolve. Rather than “mak[ing] [Sri] Lanka’s Buddhist people into a strong and unified body (eksat prabala āyatanayak) once again,” constitutional practice has confirmed the ostensible impossibility of so doing.
