The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. On the other, a number of groups have accepted the legitimacy of transnational constitutionalism as a disciplining force but have rejected the notion that such restraints can be the product of global political consensus. Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making.
But do these movements represent constitutionalism? If it does, then what are its characteristics? I have begun to explore these ideas with a particular focus on the construction of constitutionalist theory within states constituted along theorcratic lines. Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 27 Mississippi College Law Review 11 (2008). I have suggested the development of a conceptual basis for legitimating theocratic constitutional orders based on the precepts of the religion embraced, rather than on the secular universalist principles that have come to serve as the legitimating basis for many national constitutions since the Second World War.
While my initial focus has been in the construction of an Islamic theoretics of constitutionalism, Islam by no means is the only religious system seeking to legitimate government through religion. In an excellent article worth a careful read, Roshan de Silva Wijeyeratne provides a valuable analysis from the perspective of Sri Lankan Buddhism. Roshan de Silva Wijeyeratne, Buddhism, the Asokan Persona, and the Galactic Polity: Rethinking Sri Lanka’s Constitutional Present, 51(1) Social Analysis 156-78 (2007). de Silva Wijeyeratne looks to the religious foundations of the construction of the modern Sri Lankan republic to consider the current state of the Sri Lankan civil war and its potential resolution. He adopts an approach meant to harness “both historical and anthropological arguments in order to claim that Sri Lanka must resort to indigenous Buddhist resources if it is to break the cycle of post-colonial constitutional failure.” Id., at 157. The problem for de Silva Wijeyeratne is founded on the 1948 Soulbury Constitution of 1948 that institutionalized a unitary state within which it was possible for the dominant ethnic group to universalize its values in the construction of the state—and those values were religious. It was thus a short step form the 1948 constitution to the 1972 constitutional revisions that “elevated Buddhism to a ‘foremost place’ within the state, placing a burden on the state to foster Buddhism.” Id. These abstract constructions produced real consequences.
“The symbolic and real alienation of a majority of the Tamil minority from the benefits of economic and political power in the administrative center of the unitary state has been reinforced by the systematic denial of development aid to the northeast of the island, where a majority of the Tamil people live.”Id. But the 1948 constitutional settlement overlays a deeper understanding by the majority of the intimate connection between religion and the constitution of the state, one which is “driven by an ontological potentiality, which has come to be associated with the hierarchical logic of the Asokan persona.” Id. That is, the Sri Lankan state represents a replication of Buddhist cosmology in the form of “a set of cultural practices that originated in the reign of Emperor Asoka (in the third century BCE), but which further evolved in the Buddhist politics that emerged in Sri Lanka and Southeast Asia.” Id. X, though, argues that t6he Asokan persona might have been misused, and that the “Asokan Empire utilized cosmological principles to legitimate a radically decentralized imperial state structure.” Id., at 158. It is thus possible to use the Asokan settlement to new effect, one that might permit a space for the Tamil minority within a state of autonomous by loyal subordinate units. For that purpose Z carefully parses the Pali Chronicles (which are read as supporting a “univocal narrative of Sri Lanka’s past” Id.) against the realities of the pre-colonial Kandyan Kingdom “which suggest devolved forms of administration that were anything but unitary in practice.” Id.
The discussion of the Asokan Persona (id., 159-164) is revealing. Like other religions, Sinhalese Buddhism has constructed from out of its holy texts, a structure of the state apparatus based on a kingship model. Id., at 159-160. Of course, Buddhists are not alone in this model. See Larry Catá Backer, "The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment," Penn State International Law Review, Vol. 21, No. 3, pp. 509-567, 2003. Two suttas are advanced for the construction of Sri Lankan Buddhist kingship (and ultimately governance along more democratic lines). These include the Aganna Sutta and (perhaps more critically) the Cakkavatti Sihanada Sutta. Roshan de Silva Wijeyeratne, Buddhism, the Asokan Persona, supra, at 159-160. The object, as in other universalist religions, is attainment of Truth and the elaboration of individual and communal life in accordance with Truth—Dhamma, the truth taught by Buddha. Legitimate kingship, as a part of this Dhammic project replicates the elaboration of the universal order. “The socio-political is hence given form through the conduct of the righteous ruler, with Dhamma suffusing the entire social order. . . It is a hierarchical symbiotic relationship in which the Dhamma of the Buddha encompasses the king and informs the practices of kingship.” Roshan de Silva Wijeyeratne, Buddhism, the Asokan Persona, supra at 160.
De Silva Wijeyeratne cannot overemphasize the importance of this religious grounding in the legitimacy of governance. For a sense of its utility beyond academic discourse, see, e.g., Sita Arunthavanathan, Buddhist Political Thinking. It’s political implications, in rough parallel with those of Islam, are clear. “The raison d’être of territorial conquest is for the greater glory of the Dhamma, and its effect is the acquisition of karma (merit) by the king.” Roshan de Silva Wijeyeratne, Buddhism, the Asokan Persona, supra, at 161. But here de Silva Wijeyeratne carefully excavates ambiguity, especially with the construction of a unitary state under a Buddhist king. “So it is that the Cakkavatti Sihanda Sutta tells us that ‘enemy kings become client kings.’” Id. (quoting in part Steven Collins, “The Lion’s Roar on the Wheel Turning King: A Response to Andrew Huxley’s ‘The Buddha and the Social Contract,’” 24 Journal of Indian Philosophy 421, 429 (1996)). Thus X’s main point with respect to the Asokan model—the Asokan empire was centralizing but not absorbing. “Buddhism functioned as a form of conceptual glue that at the most elemental level unified the empire.” Id. But de Silva Wijeyeratne notes, that unifying character was replicated within a cosmic system in flux, a flux that might be mirrored in human social and political ordering. “This cosmic order is in a continuous state of flux as it moves between its hierarchical unifying aspect (associated with the Buddha), fragmentation and reordering, with the ordering power of the Buddha ultimately encompassing the fragmenting logic of the demonic.” Id., at 162
Like Catholic universalist cosmology, Sri Lankan Buddhist understanding linked faith and reason. “The Buddhadhamma (religion of the Buddha) stands in a relation of opposition to non-reason, which is associated with the daemonic.” Id. Contrast Benedict XVI, Faith, Reason and the University: Memories and Reflections, September 12, 2006. This is an important wedge for de Silva Wijeyeratne, in his effort to show the possibilities within Buddhist political cosmology, of the possibility of alternative religious ordering protocols, among those the current dominant legitimate view of the of a “highly centralized state structure that leaves little room for regional autonomy.” Roshan de Silva Wijeyeratne, Buddhism, the Asokan Persona, supra, at 163. Yet it also contained the possibility of its opposite conclusion. On the one hand, unitary religious nationalists emphasize the encompassing principle of the Buddha that “ensure that the gods always triumph, as the demonic is ultimately encompassed but never excluded.” Id. On the other, in the “everyday world of Singhalese Buddhism” (Id.) the flux inherent in the cosmic order is emphasized. And here the cakkavatti sihanada sutta can be appreciated in a different context, one which both a cosmology and a geography that are replicated in the political order—the spokes of a wheel radiating outward from the center but moving constantly around tat center. “In his sacred journey, the cakkavatti draws on the ontological potentiality of the cosmic order, which was actualized in the ‘architectural symbolism’ of the Buddhist politics of Sri Lanka (and Southeast Asia). While these politics were centralizing in intent, in practice they were in a continual state of flux between unitary and devolutionary movements.” Id., at 163-164. “The ontological status of the cosmic order was such that the ‘city as a whole. . . was as a heaven to the kingdom as a whole.’” Id., at 171 (quoting, in part, James Duncan, The City as Text: The Politics of Landscape Interpretation in the Kandyan Kingdom 117 (Cambridge: Cambridge University press, 1990)).
The uses and abuses of that persona (id., at 164-166), mythologized and massaged for a particular political purpose, is telling. There is much irony here. De Silva Wijeyeratne nicely points to the context in which the centralizers within the sangha won the ‘hearts and minds2 of the Sinhalese Buddhist community—in the aftermath of a political struggle against Tamil Buddhist rule in Anuradhapur from 419-455 CE. Id., at 164. The anti-Tamil trope acquired first a political and then a religious dimension from that time. Its foundation is a 6th century product of the monk Mahanama, now known as the Mahavamsa (the Great Chronicle). Id.
The chronicle states that in his last will to Sakra (Indra), the king of the gods on Mount Meru, the Buddha said: ‘In Lanka, O Lord of the gods, will my religion be established, therefore carefully protect him with his followers and Lanka.’ The ‘him’ that is referred to is Vijaya, the mytho-historical founder of the Sinhalese polity in the fifth century BCE. . . . . Thus begins the dominant-legitimating trope in the Mahavamsa in which association between Buddha kingship, the Buddhasasana (Buddhist teaching), and social order is oft repeated. The idea that Lank is both Dhammadipa and Sihadipa, dividnely ordained by the Buddha in his last will and testament to Sakra. . . takes shape.
Id. De Silva Wijeyeratne critics these manifestations for the very reason they draw their power as both history and divine command—its polemical and literary nature “that reinforced the sense of the Singhalese as a chosen Buddhist people, whose mission was to ensure that the Theravada would be sustained on the island.” Id., at 164-165. Moreover, as de Silva Wijeyeratne notes, the Mahavasmsa represented an important milestone in the struggle, among a number of Buddhist sects “for the soul of Buddhism on the island.” Id., at 165. This point is worth significantly more emphasis. Going hand in hand with the legitimation of a centralizing kingship model was a struggle for the legitimation of Theravada Buddhism as the principle source of Buddhist interpretation on the island. The struggle for control of religious orthodoxy and for the legitimation of an ideology of state construction thus went hand in hand. Lost in this triumph of a particular view of Buddhism and kingship, were alternative readings of the Asokan model on which the kingship model relied. Thus, the fact that the “claims that Mahanama makes for the Asoka are highly tenuous” (id., at 165) make little difference for the embracing of the centralizing model as divinely ordained.
And hiding underneath the religious discourse is an ethnic one. “The Mahavamsa is replete with stories of Sinhalese kings restoring the centrality of Buddhism to the polity in the perennial contestation of power with Tamil interests, both local and from South India.” Id., at 166. The defeat of the Tamil princes is central to the restoration of order from fragmentation and of the triumph of Buddhism in the land Buddha had specifically identified as a site for it. “The hierarchy of the Buddhist cosmos is reconstituted through the reinstitution of the unifying principles of Sinhalese Buddhist kingship, the fragmenting possibility of the Tamil other having been subordinated in a hierarchical relation.” Id., at 166. The result—one people, one king, one god (“Buddhism, the Sinhalese people, and the Buddhist state ‘were a unity, and their welfare synonymous’” (Id., at 166 (citing in part Michael Roberts, Exploring Confrontation: Sri Lanka, Politics, Culture and History 68 (Chur, Switzerland: Harwood Academic Publishers, 1994)). The parallels to other theocratic rhetoric are unmistakable. The only thing lacking is a developed constitutionalism to go along with the theology and political theory.
From mythic construction to the realities of state construction (id., at 166-172) evidence for de Silva Wijeyeratne the disjunctions of religious theory and state construction and provides a model for an alternative reading of religious text in the cause of an inclusive state that might still retain its religious basis. De Silva Wijeyeratne notes the importance of ritual as a way of inscribing the complex cosmology of Buddhist hegemony in simple but symbolic language. The tooth relic festival was a powerful method of reaffirmation and legitimating royal power. Id., at 167. “In the Theravada world of Sri Lanka, Burma, Cambodia, and Thailand, the cosmic axis of the polity was usually centered on a ‘relic of the Buddha, or in the palace of the king, the representative of the Sakra, the king of the gods.’” Id., at 168 (quoting in part James Duncan, The City as Text: The Politics of Landscape Interpretation in the Kandyan Kingdom 50 (Cambridge: Cambridge University press, 1990)). But the nature of that power by the time of the Kandyan kingdom was quite something else. And it is in that something else that de Silva Wijeyeratne draws for an alternative and more pluralistic construction of a Sri Lankan polity “within a Buddhist cosmological frame.” Id. At 167. The idea is inherent in the physical expression of Kandyan kingship as an application of truer Asokan principles. “Far from being a centralized monarchy, this vast empires was more likely to have been a ‘galaxy type structure with lesser political replicas revolving around the central entity and in perpetual motion of fission or incorporation.’” Id., at 169 (quoting in part Stanley J. Tambiah, World Conqueror and World Renouncer: A Study of Buddhism and Polity Against a Historical Background 70 (Cambridge: Cambridge University Press, 1976)).
The circle is complete and a different view of the implications of Buddhist kingship through the cakkavatti monarch is possible. The monarch sits at the center of a non federal empire in which each subordinate unit owes allegiance to the superior unit which it mimics in organization but from which it is not necessarily minutely controlled. Id., at 169. The king presided over rather than controlled the empire. Id. Within this system, space was available for others, like the Tamil, subject only to obedience and conformity to the overall principles of Buddhist rule. Autonomy rather than control was the rule of a kingdom in which the “periphery refused to succumb to the center.” Id., at 170. De Silva Wijeyeratne argues that in its last pre-colonial adaptation, “the last of the Buddhist polities exhibited devolutionary processes with a variety of checks and balances.” Id. But this devolutionary politics was not the product of a pragmatism at odds with the religious foundations of the state, de Silva Wijeyeratne argues. Instead, it drew on the very religious sources which provided a vision substantially different from that of the Mahavamsa.
These devolutionary dynamics received validation by drawing on the ontological potential of a cosmic order that refused an absolutely determining hierarchical moment. The cosmic order fluctuated between moments of unity, fragmentation, and reordering, and this was refracted in the dynamic relation between the center, the semi-periphery, and the periphery of the Kandyan kingdom.
Id., at 171. Even the rituals of power legitimated by its devolution from the divine could be understood to reinforce this interpretation. Rituals such as the perahara reinforced the centrality of the capital of the center by diffusing sacral power from the center top the provinces. Id., at 171.
Thus, for de Silva Wijeyeratne, the possibilities, even within a religious construct, are great. De Silva Wijeyeratne astutely reconstructs a theological basis for a Buddhist state that is both tolerant and operation and effect. He has sought to do this by engaging the religious foundation of the state on its own terms. Yet that very act is profound. It marks an acceptance of a basis for discussion of constitutional form and elaboration far removed from the discourse of western international constitutionalism. It pays scant attention to the legitimating sources of such constitutionalism in the common consensus among states. De Silva Wijeyeratne effectively respects the foundational choice of the Singhalese Buddhist majority—to construct a state on the basis of religious norms, the Asokan persona. But that choice has significant effects. By moving the discourse away from the internationalist model to the universalist model of Buddhist state construction, de Silva Wijeyeratne leaves no room for contestation of normative choices except on religious grounds—and not just any religious grounds, but those of Buddhist principles embraced by the Sinhalese. That choice effectively cuts non-Buddhist Tamils out of the conversation, except as observers. It leaves Sri Lanka in the place where it found itself in 1972—a divided community in which, for good or ill, the majority would decide the basis of its relationship with the minority grounded in its own normative cosmology and not any that might be shared with the Tamils.
There is little doubt about the strength of de Silva Wijeyeratne’s argument or the trajectory of his project. But to follow him is to accept certain fundamental limitations on the nature of legitimate discourse among Sri Lankans. The greatest is tied to the religious basis of state formation. As persuasive as de Silva Wijeyeratne is, its strength is grounded in an acceptance of the assumption that the construction of the state and its apparatus is a Sinhalese and Buddhist project. And more importantly, within this Sinhalese and Buddhist conversation, the sangha remains the legitimating center of the conversation. This is a religious conversation internal to the legitimate fonts of Sri Lankan Buddhism. Within this discourse, outsiders, like the Tamils, may participate, but only within the discursive traditions and under the assumptions that animate Buddhist and Sinhalese conceptions of the state. Ironically, of course, this is the very project, broadly and tolerantly conceived, that has recently been put forward as one version of Hindu theocratic state building in India. See Larry Catá Backer, Nehru Inverted: Building a Model for Theocratic Constitutionalism in India, Law at the End of the Day, December 23, 2007. For all that, de Silva Wijeyertne's effort is critically important.
Still, its importance remains a function of the willingness of insiders to engage in the conversation. Outsiders have little legitimacy in the construction of a common understanding of the religious foundation of the state, and people who are members of the dominant faith community have even less standing. In a way de Silva Wijeyeratne attempts here a Buddhist version of the search for a less threatening and more congenial Islam—a subject on which I have suggested some pessimism. See Larry Catá Backer, Of Political States and "Soft" Religion as the Basis for State Organization, Law at the End of the Day, July 16, 2007.
Yet, without even a first step, there is no basis for further dialog. For Tamils to even hope to begin a conversation with their majority Sinhalese brothers there must be a means by which the Tamils can be accepted within the governance cosmology of the state—and that can only be effectively if it is based on the normative framework of the majority. Whether they would be willing to accept the subordinating terms of that engagement, like for example their Coptic brothers in Egypt, remains to be seen. But that, effectively is the fundamental nature of power in theocratic states, however well ordered and solicitous of its non-conforming minorities.
And this gets us back to the original question: is the dialog thus described in Sri Lanka constitutionalism? For that purpose one need to look to determine whether religion provides a foundation for the constitution of the state, an institutionalized system of process protections and a system of substantive values against which actions by the state (administrative/police, legislative/regulatory, and judicial) can be measured and under which constitutional interpretation is grounded. Under the current Sri Lanka Constitution of 1978, Sri Lanka is established as a “free, Sovereign, Independent and Democratic Socialist Republic and shall be known as the Democratic Socialist Republic of Sri Lanka.” 1978 Constitution, Ch. 1 Art. 1. State policy constitutionally binding on the government apparatus, as a consequence includes the positive obligation to “establish in Sri Lanka a democratic socialist society” (1978 Constitution, Ch. 6 Art. 27(2) ) the objectives of which are set forth in the constitution, none of which reference a religious character to the state. Id. Indeed, a careful reading of Article 27 suggests just the opposite—that the state has been established as supremely secular and bound by the limits of post 1945 secular transnational constitutionalism based on the protection of fundamental rights and the assurance of human dignity and progressive economic policies. See Id. The appendage and contestable position of Article 9 in that context is magnified. Indeed, the “State shall ensure equality of opportunity to citizens, so that no citizen shall suffer any disability on the ground of race, religion, language, caste, sex, political opinion or occupation.” 1978 Constitution, Cgh. 6 Art. 27(6).
In the absence of a king, “sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” 1978 Constitution Ch. 1 Art. 3. Within this plausibly secular context, Buddhism is given a special place. “the Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).” 1978 Constitution, Ch. 2 Art. 9. Those assurances in Article 9 first protect freedom of conscience. “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.” 1978 Constitution, Ch. 3 Art. 10. In addition, 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 or teaching” 1978 Constitution, Ch. 3 Art. 14(1)(e). Such rights can only be defeated on potentially narrow grounds—
“The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.”
1978 Constitution, Ch. 3 Art 15(7). No one is compelled to be a Buddhist—just to live in a Buddhist state. And in the interests of such a state, but with due regard to the sensitivities of others, that state must protect and foster the Buddha Sassana, even where such fostering might otherwise impede the rights of others other than the right to believe and to manifest that religious belief in worship, observance, practice or teaching. In a Buddhist state in which the state itself must start from the assumption that the Buddhist view must prevail, the best protection afforded others is essentially the right to continue unmolested. But the price is that unmolested they are cut off from the practices and understanding of the rest of society—for whose benefit the state must act under Article 9. However, the State also is obligated to “strengthen national unity by promoting co-operation and mutual confidence among all sections of the People of Sri Lanka, including the racial, religious, linguistic and other groups, and shall, take effective steps in the fields of teaching, education and information in order to eliminate discrimination and prejudice.” 1978 Constitution, Ch. 6 Art. 27(5). Within these provisions, then, are elements of both substantive allocations of constitutional value to Buddhism and a positive obligation on the part of the state to foster those principles. That fostering is done through law, institutionalized in a Constitution that also protects the individual rights of people even as it shapes the foundations of social organization around them in a way that might be inconsistent with their individual beliefs.
It is thus possible to conceive of the 1978 Constitution as theocratic, though it is a close call. The Constitution, as it has evolved, is at war with itself. The question revolves around the power of Article 9 in the context of other constitutional provisions. If Article 9 assumes a position of superiority in a hierarchy of constitutional values to be advanced, then Sri Lanka can move more confidently toward theocratic constitutionalization grounded in Buddhism. If it does not, then the 1978 is of a different order and the import of Article 9 becomes highly contestable, especially by the Tamil minority.
The provision is itself ambiguous. Even so, evidence of the intent might be found in the way the power of the judiciary to interpret the 1978 Constitution is framed. If the Judiciary must interpret the 1978 Constitution in light of the principles of Buddhism, that would certainly push the characterization much closer to not only theocracy, but constitutional theocracy of a kind similar to that imposed in Iraq and Afghanistan. The judicial power is set forth in Chapters 15 and 16 of the 1978 Constitution.
But now a curious result. First, the broad principles of state policy in which the state is founded articulated in Article 27 are not justiciable. “The provisions of this Chapter do not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court or tribunal.” 1978 Constitution Ch. 6 Article 29. The Supreme Court “shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution” 1978 Constitution Ch., 16 Art. 125. It is granted broad constitutional review powers other than with respect to matters related to popular revisions of the constitution itself. 1978 Constitution Ch., 16 Arts. 120-123, 126-131. But the Constitution itself does not bind the court to a particular form of constitution interpretation. On the one hand that might suggest that the 1978 Constitution is not theocratic. But there is that Article 9 to deal with. It would be possible, consistent with the other provisions of the Constitution to create a hierarchy of Constitutional values in which Article 9 serves as the Supreme principle of Constitutional jurisprudence—the animating force of substantive values inherent in the Constitution. That, certainly would be consistent with the socio-cultural religious views of the majority Sinhalese as so well described by de Silva Wijeyeratne. It would, as well, comport with the form of a reading of Constitutional norms as suggesting a hierarchy of norms developed well by the German Constitutional Court since the 19560s. See Larry Catá Backer, Cosmopolitan Ideals, the European Union and Its Judiciary, Law at the End of the Day, September 22, 2006. Thus reconstructed, Article 9 could serve as the foundation through which all fundamental rights are read, and all protections to non-Buddhist others are understood. This would be consistent with both a rule of law state and one based on universal principles of religion. But it would produce results that might be substantially different from those that might be produced through an interpretative framework grounded in secular transnational norms identified through customary and conventional international law that would structure the interpretation of international constitutional normative and process traditions.
There is a sense of the way in which the current legislature seems to be going. In 2005, for example, “Sri Lanka's parliament [discussed] the "Bill on the Prohibition of Forcible Conversions", which had been proposed last July by the Buddhist Jathika Hela Urumaya (JHU) party.” Sri Lanka’s Anti Conversion Bill a Worry for Everybody, Asia News, May 5, 2005. But both government and Supreme Court did little to further the effeort. See U.S. Deptment of State, Bureau of Democracy, Human Rights, and Labor, Sri Lanka: International Religious Freedom Report 2005. Sri Lanka has put itself in a position of what may be termed soft theocratic constitutionalism. Theocracy remains a potent but contested substantive basis of constitutional values. Until there is a bit more clarity, Sri Lanka will continue to reap the worst of both worlds--as a failed theocratic and a failed secular transnational constitution.