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Religion, State, and a Conflict of Duties:A Constitutional Problem in Sri Lanka

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Religion, State, and a Conflict of Duties:A Constitutional Problem in Sri Lanka University of Windsor Scholarship at UWindsor Electronic Theses and Dissertations Theses, Dissertations, and Major Papers 8-2-2019 Religion, State, and a Conflict of Duties:A Constitutional Problem in Sri Lanka Sindhu De Livera University of Windsor Follow this and additional works at: https://scholar.uwindsor.ca/etd Recommended Citation De Livera, Sindhu, "Religion, State, and a Conflict of Duties:A Constitutional Problem in Sri Lanka" (2019). Electronic Theses and Dissertations. 7781. https://scholar.uwindsor.ca/etd/7781 This online database contains the full-text of PhD dissertations and Masters’ theses of University of Windsor students from 1954 forward. These documents are made available for personal study and research purposes only, in accordance with the Canadian Copyright Act and the Creative Commons license—CC BY-NC-ND (Attribution, Non-Commercial, No Derivative Works). Under this license, works must always be attributed to the copyright holder (original author), cannot be used for any commercial purposes, and may not be altered. Any other use would require the permission of the copyright holder. Students may inquire about withdrawing their dissertation and/or thesis from this database. For additional inquiries, please contact the repository administrator via email ([email protected]) or by telephone at 519-253-3000ext. 3208. Religion, State, and a Conflict of Duties: A Constitutional Problem in Sri Lanka By Sindhu De Livera A Thesis Submitted to the Faculty of Graduate Studies through the Faculty of Law in Partial Fulfillment of the Requirements for the Degree of Master of Laws at the University of Windsor Windsor, Ontario, Canada 2019 © 2019 Sindhu De Livera Religion, State, and a Conflict of Duties: A Constitutional Problem in Sri Lanka By Sindhu De Livera APPROVED BY: ______________________________________________ J. Cappucci Assumption University ______________________________________________ R. Moon Faculty of Law ______________________________________________ V. Venkatesh, Advisor Faculty of Law August 2, 2019 DECLARATION OF ORIGINALITY I hereby certify that I am the sole author of this thesis and that no part of this thesis has been published or submitted for publication. I certify that, to the best of my knowledge, my thesis does not infringe upon anyone’s copyright nor violate any proprietary rights and that any ideas, techniques, quotations, or any other material from the work of other people included in my thesis, published or otherwise, are fully acknowledged in accordance with the standard referencing practices. Furthermore, to the extent that I have included copyrighted material that surpasses the bounds of fair dealing within the meaning of the Canada Copyright Act, I certify that I have obtained a written permission from the copyright owner(s) to include such material(s) in my thesis and have included copies of such copyright clearances to my appendix. I declare that this is a true copy of my thesis, including any final revisions, as approved by my thesis committee and the Graduate Studies office, and that this thesis has not been submitted for a higher degree to any other University or Institution. iii ABSTRACT Both of Sri Lanka’s post-independence, autochthonous, republican constitutions have contained within their pages a directive which declares that “Buddhism shall have foremost place”. The framers of Sri Lanka’s constitution insisted that this was simply an acknowledgement of the “special” place of Buddhism in the fabric of Sri Lanka’s history. However, recent history has shown this provision being used directly and indirectly to deny portions of Sri Lankans their fundamental rights. The victims of this provision belong both to the majority and minority religions. The question this thesis attempted to answer was: does Sri Lanka’s duty to Buddhism under Article 9 of the Constitution conflict with its duties to its citizens under fundamental rights provisions? This thesis argues that (i) such a conflict does exist and (ii) where it arises the state has time after time prioritized the promotion and protection of Buddhism over protecting its citizens’ fundamental rights, and that this has in turn affected the state’s ability to deal neutrally with its citizens. Four instances of this conflict are examined in detail: the restrictions placed on proselytization, the Deeghavapi case, the child monk and the re-imposition of a ban on women’s ability to purchase alcohol. This thesis further argues that legal and political protections afforded to religious minorities, such as personal laws and special laws are insufficient to protect the rights of vulnerable groups within those minorities and instead serve to promote communalism. Key words: religious states, preferred religions, endorsed religions, state-religion relationships, human rights, constitutional duties, conflict of duties, constitutional law, freedom of religion, state neutrality, child monk, personal laws, minority rights, Sri Lanka. iv DEDICATION I dedicate this thesis to my husband, my parents and my brother, with love. v CONTENTS DECLARATION OF ORIGINALITY ................................................................................. iii ABSTRACT ............................................................................................................................ iv DEDICATION ......................................................................................................................... v LIST OF FIGURES ............................................................................................................... viii Chapter 1 Introduction ............................................................................................................ 1 Context .................................................................................................................................. 4 Literature Review ................................................................................................................. 7 Chapter 2 Sri Lanka: The Birth of a Religious State ........................................................... 19 The Roots: Giving Buddhism Foremost Place ................................................................. 19 The Arrival of Buddhism in Sri Lanka .......................................................................... 20 The Fusion of Ethnicity, Language and Religion ......................................................... 24 Promises to the Past, Promises to the Future: A Conflict in the Constitution................. 26 Demystifying Article 9 .................................................................................................... 35 Courts and Contradictions ............................................................................................. 37 “Good” Constitutions and Good Governance .............................................................. 40 Chapter 3 Duties to Human Rights vs. Duties to Religion .................................................. 41 What Laws Bind Sri Lanka to Human Rights? ................................................................. 43 Case: Restrictions on Proselytization ................................................................................. 52 Case: The Deeghavapi Case .............................................................................................. 61 Case: The Child Monk....................................................................................................... 63 Case: Alcohol Ban for Women .......................................................................................... 72 Chapter 4 How a Religion becomes Political ....................................................................... 77 Ideological Religious Values .............................................................................................. 79 Where Ideology Becomes Action ...................................................................................... 80 Culture and Religious Values ............................................................................................ 81 Conflicting Ideals ................................................................................................................ 84 Types of Conflict ............................................................................................................ 86 Between State Neutrality and Secularism ......................................................................... 89 Flavours of Neutrality ......................................................................................................... 95 Formal, Substantive or a Competitive Market? ............................................................ 96 Protections for Minorities, Exceptionalism and Communalism ...................................... 98 vi The Personal Law System of Sri Lanka ......................................................................... 98 Exceptionalism and Communalism ............................................................................. 102 Chapter 5 Conclusion .......................................................................................................... 107 BIBLIOGRAPHY................................................................................................................. 109 Jurisprudence .................................................................................................................... 109 Sri Lanka ......................................................................................................................
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