Influence Through Ambiguity – A Debate on Religious Power in Constitutions

By Kelly O’Halloran, Juris Doctor Candidate (2015), Northwestern University School of Law. 

At first glance, the Sri Lankan constitution presents religion in a way that seems to find a middle ground between a state-established religion and the separation of church and state. In Sri Lanka, the constitution includes both a codified preference for Buddhism as well as language that protects minority religions. “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).” (Chapter II §9). While the constitution gives preference to Buddhism, Sri Lanka does not take the further step of establishing Buddhism as the state religion.

In the colloquium on Sri Lanka’s constitution, Professor Benjamin Schonthal claimed that by giving Buddhism preferential treatment, the Sri Lankan Constitution gives Buddhist leaders more influence than they (and by extension the religion itself) would have if Buddhism were the state religion. Schonthal supported his assertion by arguing that when the state is in control of a religion, political leaders, rather than religious leaders, determine the content of the religion. For example, Indonesia’s Blasphemy Law empowers government officials to determine whether a practice or belief falls within a religion. Similarly, Iran provides the classic example of political control of a state religion. In Shi’ite Iran, Khomeini exercised his authority over Islam and borrowed a Sunni doctrine to create a guardianship of the jurist.  In contrast to these examples, Schonthal argues Buddhism gets the benefits of a state religion (such as preferential treatment and protection) without its leaders ceding political control over the internal affairs of Buddhism. Thus, Schonthal raises a relevant question: Do religious leaders have more political influence as an inherent part of the state, or do they have more political influence when formally protected but not under the government’s control?

Notwithstanding the above examples, in countries that have established religions, it is not always clear whether the state controls the religion or the religion controls the state. A government may have the power to determine the qualifications for religious leaders, whether places of worship can be built, and issues of land ownership. And, in this context, the government exercises immense control because followers of the religion are dependent on the willingness of the government to continue supporting the religion. On the other hand, the preamble of the constitution usually appeals to the established religion as a source of authority. Phrases like “so long as consistent with [the state religion]” are common in political or human rights clauses, putting religious leaders in a prominent and powerful position, and perhaps giving them independent authority regardless of their connections to the government. The tension between the two perspectives suggests that we cannot view religious power in the state through a generalized theory.

When applying these perspectives on religion to the Sir Lankan context, Schonthal’s assertion becomes less convincing. First, Buddhism may look more like an established religion than Schonthal acknowledges. For example, the government retains power to govern disputes over temples and religious services (§105(4)) and to make laws concerning religious institutions (154G(5)(a); List III(27)), disposition of land (List I(18)), and religious societies (List I(28). If Buddhism is treated like an established religion, then the religion’s power could be the product of state control, not ambiguity in the constitution. This would mean that the religion’s power is dependent upon the uncertainty of whether the state controls the religion or if the religion, as a source of legislation or aspiration of the constitution, controls the state.

Second, it is unclear how Schonthal quantifies Buddhism’s political influence and at what point in government that influence is felt. The Buddhist political party introduced a broad law against proselytizing and forced religious conversions. While, the party’s success in getting the bill passed demonstrates Buddhism’s (or at least Buddhist political leaders’) influence in the legislature, in a judicial challenge to the constitutionality of the bill, the court found for the non-Buddhist challengers by stating that some of the law’s substance violated the constitution. However, the Court in this case did agree with the Buddhist party that forcible conversions would violate the constitution. And the Court’s efforts to appease both parties could provide evidence that the judiciary is unwilling to completely check the religious leader’s influence in politics.

In some ways, Schonthal’s colloquium raised as many questions as it clarified: Do religious clauses in constitutions indicate the role that religion plays in government? Does the appearance of compromise in Sri Lanka give Buddhism power without limitations? How can constitutional drafters be certain of the power they are giving to religion in general and religious authorities in particular? How is political influence quantified and defined? At what level of government is the influence exerted? And, is there a way to meaningfully categorize religious clauses or is each unique, even when the textual language is exactly the same in two or more countries?

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Posted in Analysis
One comment on “Influence Through Ambiguity – A Debate on Religious Power in Constitutions
  1. Ben Schonthal says:

    Excellent analysis Kelly! Just one clarification: the JHU bill wasn’t passed by the parliament, but was subjected to a process of pre-legislative judicial review . Thank you for the wonderful food for thought!
    REgards, Ben

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