The Significance of Article 9 of the Constitution Should or could it be removed

• Buddhist thinking superimposed upon all Eastern thought the notion of the equality of all human beings - C.G. Weeramanthry
• Social contract theory requires the Govt to use such power for peace, safety and public good of the people
• Giving foremost place to Buddhism proved to be a sound constitutional machinery
• “Sovereignty is in the people” was a fundamental feature of the Buddhist system of Government - Dr. Wijeyethunga

Article 9 of the Constitution has become the subject of much discussion. Could or should it be removed from the Constitution?   

Article 9 reads as follows;   

“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). (Emphasis mine).   

Critics allege that this Article leads to inequality. According to some it is only a decoration. However, there were historical and practical reasons to include it in the present constitution. Similarly makers of the new constitution cannot disregard or destroy the basic foundation and structure of our civilization. Constitutions of several other affluent countries, e.g. Denmark, Hungary, Norway, most of the Middle East Countries etc., fearlessly safeguard ‘State Religions’ of their respective civilizations. Buddhism has formed the structure and foundation of our civilization for over 2500 years.   

C.G.Weeramantry, former Vice President of International Court of Justice and a Justice of the Supreme Court of Sri Lanka, in his work on Equality and Freedom states; “Buddhist thinking superimposed upon all Eastern thought the notion of the equality of all human beings.... Buddhist thinking likewise furnishes some of the earliest recorded thought concerning the conduct of democratic self-governing institutions”.   

What assured the stability of our country and society for over 2500 years? It was nothing but the application of Buddhist principles of good governance by the Kings and administrators of the State who gave the foremost place to Buddhism. They gifted us a proud history free from Ethnic or communal conflicts or clashes.   

Foremost place to Buddhism 

From the time of arrival of Arahath Mahinda in 236 B.C., giving the foremost place to Buddhism had been the first principle of the unwritten constitution of this nation. Today it is in our written constitution. Buddhism firstly imposes a set of strict “rules of good governance” on the Head of the State and secondly assures a working “social contract” among the Government/State and its people. 

The term Buddha Sasana could be further extended to include Maha Sangha, archaeological sites, villages, lands and properties feeding Buddhist temples and Viharas

In such a State, the King should refrain from Sathara Agathi (4 biases); bias due to (i) liking (ii) anger (iii) ignorance and (iv) fear. He should treat the community with Sathara Sangraha Wasthu (i) Giving (Dana) (ii) pleasant words (iii) working for public benefit and (iv) equal treatment. He shall necessarily practise the Ten Royal Virtues (Dasa raja Darma) (i) Generosity/charity (ii) morality (iii) Sacrifice for the public benefit (iv) Honesty/integrity (v) Kindness (vi) Restraint of senses (vii) Avoid hatred (viii) non-violence (ix) tolerance (x) non-opposition to the will of the people.   

There are plenty of other similar rules and practices proclaimed in Buddhism. No Constitution in the world (not even the sub-committee reports or the interim report presented to the constitutional assembly) imposes such strict rules relating to moral conduct directly on the key officials of the three Organs of the State (Executive, Legislature and Judiciary). The main focus of such constitutions (and reports) is only to physically regulate such institutions and organs.   

The other unique feature of a State placing Buddhism in the foremost place is the creation or a workable “social contract”, promising the complete implementation of Rule of Law. Western concept of ‘social contract’ considers that people hold the absolute power (including the powers of government): We call it Sovereignty (it is inalienable). People entrust or surrender such powers of government to the Government/State, which in return undertakes to protect the People. Social contract theory requires the Government/State to use such power for peace, safety and public good of the people (P/N; this theory is simplified and restricted to the extent as required for this article).   

However the people should have the right to take such power back, either at the end of a given term or whenever the government abuses such power and breaches such contract against the expectations of the people. However, the pioneers of this theory, (Thomas Hobbes, Jean Jacques Rousseau, Thomas Paine, John Locke) have no practical answer to the question, ‘how could the people get back the power surrendered to the Government if the Government abuses such power or act against the interest of the people?’ Suggested options are either to ‘rebel against the government’ or to make the law ineffective by disobedience. 

The other unique feature of a State placing Buddhism in the foremost place is the creation or a workable “social contract”, promising the complete implementation of Rule of Law

These methods need force leading to violence, breach of law and peace etc. and therefore are unconstitutional. This is an inbuilt defect in modern constitutions, but inevitable in the absence of a complete theory of a workable social contract.   

On the other hand, giving the foremost place to Buddhism proved to be a sound constitutional machinery that assured a cordial and stable relationship among the King (Government) and the People for over two thousands of years. Kings pledged before people and Maha Sangha (Buddhist Clergy) to give the foremost place to Buddhism and protect and foster Buddha Sasana. This pledge was later symbolized by retaining the custody of the Dantha-Dathun Vahanse (the Sacred Tooth relic of Gauthama Buddha). According to Dr. Harischanda Wijayathunga, Kings were selected with the consensus of the people and the approval of Maha Sangha. However, the Maha Sangha did not incline to interfere with the political affairs or state administration, except when the King abused powers or acted against the expectations of the people. According to Dr. Wijayathunga, the concept that “Sovereignty is in the people” was a fundamental feature of the Buddhist system of Government and had been practised for over thousands of years in this Country (That theory is not an invention of West).   

Therefore (unlike the Western oriented –so call- modern constitutions) in our historical (unwritten) constitution Sovereignty of the people passed to the King/State through Maha Sangha in a semi-circle path, while maintaining a Triangle of Accountability in between.   

The King relied on the approval of Bikkus/Maha Sangha and the consent of the People. Bikkus/Maha Sangha were maintained by the people and protected and fostered by the King. The People in turn depended on the King for their protection, peace, prosperity and governance and on Bikkus/Maha Sangha for Spiritual guidance and upliftment. This triangle of accountability inter-locks them with strong mutual commitments.   

What assured the stability of our country and society for over 2500 years? It was nothing but the application of Buddhist principles of good governance by the Kings and administrators

In such a system the people had constant control over the State (King) and had every right to participate in the decision making process. King and the people were constantly advised by Maha Sangha with their knowledge and wisdom. Maha Sangha, being an independent sub-society practising detachment, could conveniently execute their social responsibility without material expectations. People, neither required waiting until the expiration of a specific time to change the King, nor had any reason to protest or be rebellious for their needs, as they had a ready-made channel to communicate their requirements to the King. King/State was duty bound to obey and comply with such requirements. Further, Buddhist principles of good governance did not permit the King to disregard the needs of the people. But, whenever the people found reasons to take back the powers entrusted upon the King, they could easily reverse the earlier process with the intervention of Maha Sangha. This reverse process too was constitutional.   

Buddha Sasana 

Buddhist principles of governance were (are) functional on the foundation of Buddha Sasana. The Supreme Court (in SC Determination 1/94 (1994) held; “The expression ‘Buddha Sasana’ is wider than ‘Buddhism’ and includes the entire establishment together with objects and places of religious practices and worship of Buddhists”. Hence the term Buddha Sasana could be further extended to include Maha Sangha, archaeological sites, villages, lands and properties feeding Buddhist temples and Viharas. Therefore the Buddha Sasana includes both tangible and intangible features. 

For over 2500 years Buddha Sasana has been established throughout the entire territory. Therefore it is mandatory for the country to be under the authority of one supreme central Government in order to give full effect to Article 9; i.e. the Country should be a Unitary State. Further, this constitutional responsibility compels the State to protect the territory and assure the prosperity of every citizen (not only of Buddhists) of the Country, without which the protection and fostering of Buddha Sasana would not be practical.   

Therefore every citizen of such a State would equally be benefited by this unique system of government. According to historians, our civilization had (still has) an inbuilt social mechanism whereby the people of different ethnicities, races, classes, religions etc., merged into one community by leaving behind their respective differences. It was a system of harmonization or unification, (which is opposed to the alien concept of “reconciliation”). Therefore there was (and still is) no room or reason for communal conflicts. This mechanism prevented our country from segmentation or separation and assured the unity and solidarity of the people for over thousands of years. Therefore, purported the inter-communal conflicts and differences promulgated by racist separatists/politicians are mere fabrications artificially implanted in the hearts of our people with ulterior and vicious political motives.   

Our Kings saved the unitary State by uniting the people. For this they used the simple method of “Eksesath Kireema/ Ekachathra Kireema”. This means calling the people to group under one umbrella. In the constitutional sense, this term is different from “Unitary (State)”, which represents, a Central Supreme Legislature and a Central Government with concentrated executive powers exercisable over the entire country. Unitary State is a concept created by law (constitution) taking the territory as the basis. Eka-Chchathra, on the other hand, refers to a unitary State created by the people with their solidarity and accepting the leadership of one King, State or Government. Our Kings established a Unitary State, not by the force of law, but with the free will of the people uniting with each other irrespective of their religion, caste, race or ethnic origin etc. (this is also another aspect of the theory of social contract; bond between citizens).   

As Weeramathri observes, “However elaborate or simple, Third Word societies thus afforded a central place for the group concept, without which they could neither be understood or administered...what follows (from this examination) is the lack of appropriateness of Western concepts of individual freedom adopted without adaptation to their Third World setting”.   

The authors of the interim report and the sub-committee reports seem to have completely ignored the thinking, traditions, historically established constitutional principles and practices of the very civilization (comprising of Sinhalese, Tamils, Muslims and observers/followers of all religions) that they claim to be making a new constitution for. Therefore, they have messed up the fundamentals. This patent procedural failure shall lead to total rejection of the new constitution or any other similar constitutional amendments.   

In my work on this subject (Budusasuna ha Viyawasthava-Desarasa publications) I have further dealt with the nature, scope and the application of Article 9. It assures a stable and a united/ indivisible society and serves equally (without discrimination) the persons of all religions and ethnicities. Article 9 alone forms its own system of government with unique features that cannot be found in any other constitution in the world. It stands above the other Articles in the Constitution and binds the Sate unconditionally. Therefore, the State is bound to give effect to the order of Maha Sangha to terminate the ongoing constitution making process as - obviously- that process has been driven on the wrong track from the very inception.   

Unfortunately we have not yet realized the value and the uniqueness of Article 9. Instead of removal, it is high time to look into ways to make it a fully functional provision in the Constitution.   

For over 2500 years Buddha Sasana has been established throughout the entire territory. Therefore it is mandatory for the country to be under the authority of one supreme central Government in order to give full effect to Article 9; i.e. the Country should be a Unitary State. 

Further, this constitutional responsibility compels the State to protect the territory and assure the prosperity of every citizen (not only of Buddhists) of the Country, without which the protection and fostering of Buddha Sasana would not be practical.   

Therefore every citizen of such a State would equally be benefited by this unique system of government. 

According to historians, our civilization had (still has) an inbuilt social mechanism whereby the people of different ethnicities, races, classes, religions etc., merged into one community by leaving behind their respective differences. It was a system of harmonization or unification, (which is opposed to the alien concept of “reconciliation”). 

Therefore there was (and still is) no room or reason for communal conflicts. This mechanism prevented our country from segmentation or separation and assured the unity and solidarity of the people for over thousands of years. 

Therefore, purported the inter-communal conflicts and differences promulgated by racist separatists/politicians are mere fabrications artificially implanted in the hearts of our people with ulterior and vicious political motives.   

Our Kings saved the unitary State by uniting the people. For this they used the simple method of “Eksesath Kireema/ Ekachathra Kireema”. This means calling the people to group under one umbrella. In the constitutional sense, this term is different from “Unitary (State)”, which represents, a Central Supreme Legislature and a Central Government with concentrated executive powers exercisable over the entire country. Unitary State is a concept created by law (constitution) taking the territory as the basis. Eka-Chchathra, on the other hand, refers to a unitary State created by the people with their solidarity and accepting the leadership of one King, State or Government. 

Our Kings established a Unitary State, not by the force of law, but with the free will of the people uniting with each other irrespective of their religion, caste, race or ethnic origin etc. (this is also another aspect of the theory of social contract; bond between citizens).   

As Weeramathri observes, “However elaborate or simple, Third Word societies thus afforded a central place for the group concept, without which they could neither be understood or administered...what follows (from this examination) is the lack of appropriateness of Western concepts of individual freedom adopted without adaptation to their Third World setting”.   

The authors of the interim report and the sub-committee reports seem to have completely ignored the thinking, traditions, historically established constitutional principles and practices of the very civilization (comprising of Sinhalese, Tamils, Muslims and observers/followers of all religions) that they claim to be making a new constitution for. 

Therefore, they have messed up the fundamentals. This patent procedural failure shall lead to total rejection of the new constitution or any other similar constitutional amendments.   

 

Unfortunately we have not yet realized the value and the uniqueness of Article 9. Instead of removal, it is high time to look into ways to make it a fully functional provision in the Constitution.   

In my work on this subject (Budusasuna ha Viyawasthava-Desarasa publications) I have further dealt with the nature, scope and the application of Article 9. 

It assures a stable and a united/ indivisible society and serves equally (without discrimination) the persons of all religions and ethnicities. Article 9 alone forms its own system of government with unique features that cannot be found in any other constitution in the world. It stands above the other Articles in the Constitution and binds the Sate unconditionally. 

Therefore, the State is bound to give effect to the order of Maha Sangha to terminate the ongoing constitution making process as - obviously- that process has been driven on the wrong track from the very inception.   

Unfortunately we have not yet realized the value and the uniqueness of Article 9. Instead of removal, it is high time to look into ways to make it a fully functional provision in the Constitution.