Regional and Constitutional Practices in Asia Exploring the ambiguous

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By 2017-11-15

By Priyangwada Perera

"We look at it, and do not see it; it is invisible. We listen to it and do not hear it; it is inaudible. We touch it, and do not feel it; it is intangible. These three elude our inquiries, and hence merge into one", says the Eastern philosopher Lao Tzu. It is tempting to quote this in a different context. Different eastern religions and philosophies have contributed and influenced Asian culture and politics.

Oblivious to the general understanding, it can be argued that there is a strong undercurrent of religion in each of the constitutional practices in Asian countries.

The Centre for Asian Legal Studies (CALS) and the International Centre for Ethnic Studies (ICES) came together to host a paper presentation and discussion on Religion and Constitutional Practices in Asia. It was held at the International Centre for Ethnic Studies, on the 9 and 10 of November.

It is the lack of knowledge, lack of information and our inability to base our arguments on concrete facts that often give rise to prejudices. The programme continued for two days with four panel discussions on the first day. They were themed Islam and the Constitution, Buddhism and the Constitution, Religion and 'Secular' Constitutions and Law and Policy. Dr. Matthew Nelson from SOAS, University of London was the first to speak on Amending Pakistan's (Islamic) Constitution: Electoral vs. Judicial Power. Dr. Nelson stressed on the essential features of a Constitution that cannot be amended. He brought forward a comparison between the Indian and the Pakistani Constitutions. Dr. Nelson termed them 'remarkably similar, yet totally different.' The question was whether Sri Lanka is an outlier.

Dr. Shamshad Pasarlay, Assistant Professor at Herat University School of Law and Political Sciences spoke of the Role of Islam in Afghanistan. Based on their Constitution making from 1880 to 1901, Dr. Pasarlay discussed the absence of 'one original Islam' in Afghanistan. The more dividing than the unifying aspect of Islam, which was different from community to community was presented right from 1880s to 2004 where Afghanistan adopted its 1st Constitution of the 21st century.

The paper on Religion, Child Conversions and Custody Battles in Malaysia was presented by Dr. Dian A. H. Shah of National University of Singapore author of Constitutions, Religion and politics in Asia, Indonesia, Malaysia and Sri Lanka. The problematic issue of having to appear in Sharia Courts where a Hindu mother has no standing was brought to light. Associate Prof. Arif Jamal from National University of Singapore spoke of the importance of the contextual practise.

Gehan Gunatilleke, a human rights lawyer and researcher, pursuing DPhil (PhD) at the University of Oxford, focussed on Sri Lanka. The ethno religious violence in the 2015 era was discussed. Highlighting violence divided into chronic, acute and structural forms, Gunatilleke argued that statistics suggest that violence has not changed despite the change of Governments. His question was why our legal system has not been strong enough to fight this. Does the Constitution support ethno religious violence? We are socialized to believe that Sri Lanka is a Sinhala Buddhist country. Gunatilleke's explanation of the misreading of 'sasana', which is no longer the 'teaching' but 'Buddhist community'. The problematic function of Sangha declaring themselves the 'protectors of Buddhism' and wherever violence is instigated the mediation of Sangha restricts the law were addressed.

Dr. NyiNyiKyaw from Myanmar discussed how Buddhism has been the religion of the State since the 9th Century. There were non-Buddhists who contributed to the freedom struggle, but nobody questioned the decision of the then insanely popular Aung San who was the father of Aung San Suu Kyi, when he made Buddhism the State religion. He also discussed the anti-Muslim Buddhist nationalism post-2013 where Buddhism re-established itself as the 'host', and the others as the outsiders, where Christianity and Islam were considered guests. Post Doctoral Fellow Eugenie Mérieau came out with her vast knowledge and understanding of Buddhist Constitutionalism in Thailand. What Mérieau called the 'Buddhistization of legal thought', Buddhist kingship and how good governance was considered inferior to the 2000 plus years old Buddhist forms of 10 Royal Virtues of a Righteous King were spoken in terms of Natural Law and Legal Law.

Prof. Benjamin Schonthal brought out a fine discourse on Religious Law and Public Law. He further discussed about religious authority and State legal authority; and the concept of Raja Dharma and Dharma Raja, where Dharma also becomes the law. How 'Buddistization of law' tends to happen. Prof. Schonthal spoke in terms of reconciling the interest of two groups of authority.

Associate Prof. Ameya Balsekar, who spoke on Gandhian philosophy to the Indian Constitution and quoted the British economist Joan Robinson who said "Whatever you can rightly say about India, the opposite is also true," Prof. Balsekar expressed his passionately delivered sentiments, and facts on nationalism that is so unique to the process of the Indian Constitution making.

Shamsul Falaah from Maldives spoke on Islamic Constitutionalism in the Maldives, where a Maldivian should be a Muslim. Dr. Radhika Coomaraswamy brought out how most countries in the world cater to one religion. She referred to religion as "The skeleton under the flesh." Her differentiation was that most of the issues reported are not constitutional but criminal justice issues.

Prof. Andrew Harding drew a fine parallel between division and the British introduction of Cricket to India. It was never the British Vs. India that got divided. India was divided in terms of Hindu, Muslim or Parsi teams. He discussed the self contradiction of the nature of 'freedom of religion'. Prof. Harding insisted that giving one religion constitutional provision of primacy essentially discriminates another. He questioned the need of calling God by one specific name. Dr. Asanga Welikala looked at the thought of a 'perfect Constitution' that can address 'life that is imperfect'. Where he saw a 'perfect Nation State' as unachievable; his argument was that equality should be abandoned in favour of pluralism.

It was half in jest that Benjamin Schonthal mentioned his brother's reaction when he heard Ben has authored "Law and religion in Sri Lanka, who cares about that?," In preparation for writing 'Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka'; Ben had wanted to find a book, a story that could tell him about law, a history that came through ethnography, interviews and so on. But he could not find that book. "I hope we wrote the book I could not find," he concluded.



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