Discussions of Buddhism and constitutional law frequently focus on one direction of influence: the influence of Buddhist principles on the guiding law of the state. But what about the other direction? In what ways do notions of constitutional law find their way into Buddhist institutions? Are there notions within Buddhist communities, both traditional and emergent, that seem similar to the notion of constitutional law?
This chapter builds on previous work that examines Buddhism and constitutional law in Sri Lanka and other Theravāda contexts.Footnote 1 While it considers the broader dynamics of politics, nationalism, and Buddhist groups that helped shape Sri Lanka’s 1972 and 1978 Constitutions – which officially give to Buddhism “the foremost place” and oblige the state to “protect and foster” it – this chapter directs its major questions about Buddhism and constitutional law elsewhere. It investigates a Buddhist group that claims to commit itself to nonviolence and scriptural Buddhist reform, and it examines the ways in which this group blends religious practice with linguistic and nationalist ideologies drawn from secular constitutionalism.
More specifically, this chapter looks closely at a new transnational movement of televangelist Buddhist monks, who form part of the “Mahamevnāva Monastery” in Sri Lanka. These monks publicly proclaim their support for a state of Gautama Buddha (gautama buddha rājya) that is governed by the authentic doctrine (saebae dahama). They also encourage their followers to liberate themselves from all suffering (siyalu dukin) by attaining nirvana in this life. This Mahamevnāva group believes that most everyday Buddhists fail to live up to the Buddha’s teaching and the Noble Eightfold Path to nirvana because they do not fully understand the language in which the teaching has been preserved.
Mahamevnāva believes, not unlike constitutional draftspersons, that the correct language – in the form of accurate vernacular translations of the Buddha’s teaching – might solve the problem. Although the monks of this group claim to maintain a separation of religion and political life and actively cultivate an air of other-worldliness, they actually use the status and prestige that Sinhala acquires through the Constitution to argue for its use in sacred contexts. In their case, Mahamevnāva insists that a reform of Buddhism ought to involve a reform of the language used in rituals and textual practices. More specifically, they believe that Buddhist practices ought to shift from Pāli, the Buddhist canonical and ritual language to Sinhala (Harvey Reference Harvey2012), the majority language of the Sinhalese Buddhists which is one of the two official languages in the country (Dharmadasa Reference Dharmadasa2000).
As a linguistic anthropologist, I draw upon tools of linguistic analysis and ethnography to offer a unique viewpoint on the interrelations of Buddhism and constitutional law. More specifically, I use the concept of linguistic ideologies, by which I mean “the ideas with which participants and observers frame their understanding of linguistic varieties and map those understandings onto people, events, and activities that are significant to them,” (Irvine and Gal Reference Irvine, Gal and Kroskrity2000) in order to explain the influence of constitutional law on Buddhist practices. This chapter shows how Mahamevnāva has taken the linguistic ideology of Sinhala nationalism, the ideology which was absolutely central to constitutional practice in Sri Lanka and made it a central tenet of Buddhist practice. The group has also taken a core idea of Sri Lankan constitutionalism – that the law of the land should be accessible to and representative of the “nation,” and turned it into a soteriological principle of direct access to nirvana. By making these points, I suggest that both the Constitution and Mahamevnāva’s Buddhist reforms embody similar forms of linguistic ideology in which the ideal state – for example either the Republic of Sri Lanka or the ideal Buddhist state – can be realized by creating “public” texts for the uplift of the “nation.”
In what follows, I will first sketch the histories of constitutional debates on the Sinhala language in colonial and postcolonial Sri Lanka and their nationalist underpinnings. I will then consider the emergence of the Mahamevnāva monastic group and their interpretation of Buddhism, language, and state. In contrast to the popular idea that Buddhism influences public law in many South and Southeast Asian societies, I demonstrate that constitutional design and interpretation have also come to influence Buddhism.
7.2 Language Policy and Monastic Politics in Post-independence Sri Lanka
In postcolonial constitutional debates in Sri Lanka, the issue of the “national language” became one of the major themes of both religious and political spheres.Footnote 2 A number of lay and monastic groups have been concerned with protecting the linguistic preeminence of the ethnic majority Sinhalese while at the same time ensuring the safeguarding of Buddhism, the main religion of the ethnic Sinhalese.Footnote 3 Buddhist monks allied with politicians and political parties which promised to secure the authority of the Sinhala language and Buddhism. According to some scholars, the development of this relationship between politically engaged monks and Sinhalese nationalist politicians was an opposition to the secular, Western-style government that was implemented during colonialism and continued to be used in the newly sovereign nation (Kapferer Reference Kapferer1998).
Religio-linguistic politics based on ethnic outbidding gained pace, especially in the early 1950s in post-independence Sri Lanka, with the formation of the Sri Lanka Freedom Party (SLFP) under the leadership of S. W. R. D. Bandaranaike.Footnote 4 During the general election in 1956, Bandaranaike promised to safeguard the interests of the Sinhalese Buddhists by offering populist social reforms such as the introduction of the Sinhala-only official language policy. His attempts to reform the status of official language/s echoed the dominant “one nation–one language” ideology which grew during the colonial period as a reaction against the dominance of English. Sinhala-only politics came to be seen as a tool of decolonization. This fed a growing culture of linguistic nationalism which was, as K. M. De Silva points out, a form of “populist nationalism, in contrast to the elitist constitutionalism of the early years after independence” (De Silva Reference De Silva1986, 164).
In the decade following independence in 1948, Buddhist pressure groups – mainly monastic organizations – campaigned for the adoption of a Sinhala-only policy, and for the restoration of the “rightful status” of Buddhism (Phadnis 1976, 65). The newly formed Eksath Bhikku Peramuna (EBP) or the United Monks Front, for example, played a critical role in the 1956 general election as a major political pressure group. They presented a ten-point agenda (the Dasa Panatha) to Bandaranaike which included making Sinhala the only official language and giving Buddhism its “rightful” place (Tambiah Reference Sri Dhammananda Thero1992, 42–44).
Shortly after Bandaranaike was elected as the prime minister in 1956, the parliament passed the Sinhala Only Act,Footnote 5 which made the majority language the sole official language of the country. Government institutions such as the Department of Official Language Affairs and the Department of Swabhasha were brought under the purview of the Prime Minister from October 1, 1956. A separate Ministry of Cultural Affairs, which was largely mandated with preserving Sinhalese culture and Buddhism, was also established in that year. In accordance with the Sinhala Only Act, a number of activities were carried out by the Official Languages Department. This included publishing the Government Gazette in Sinhala, franking official letters in Sinhala, issuing important government circulars in Sinhala, printing official publications in Sinhala, compiling glossaries of technical terms, and implementing language training classes for government servants. In addition, two major pirivenas, or “oriental study centers,” the Vidyalankara and Vidyodaya, were transformed into universities, further encouraging the study of Sinhala and Buddhism with the benefit of added government funding. These attempts led to a cultural revolution in the following years, popularly known as “the Revolution of 1956” (panas haye peraliya).
Predictably, the Sinhala-only language policy marginalized non-Sinhala speaking minorities in the multilingual country. It not only promoted religio-ethno-linguistic nationalism on both sides of the ethnic divide, but became a key source of frustration and anger among Tamil nationalist groups, including a variety of militant movements (most notably the Liberation Tigers of Tamil Eelam) that gained influence beginning in the 1980s (Wilson Reference Wilson1975). Ethnic riots against Tamils erupted in July 1983 in the Sinhala-dominant south, and the subsequent civil war conditions further complicated the problems related to linguistic rights of the minority Tamils.Footnote 6
During this time, the notion of Tamil as a minority language had been used as a justification for separatist aspirations among Tamils. Even the Indo-Sri Lanka Accord signed by Sri Lankan President J. R. Jayewardene and Indian Prime Minister Rajiv Gandhi in July 1987, which declared that Sri Lanka is “a multi-ethnic and multilingual plural society,” could not ameliorate the situation. The country was unsettled by mass protests organized by monks, political parties, and lay Buddhist associations under the powerful umbrella organization Mavbima Sirakeeme Wiyaparaya, or “The movement for safeguarding the motherland” (Amunugama Reference Amunugama1991). Tamil and English were, in the end, proclaimed to be official languages, along with Sinhala in 1988, as a part of the 13th amendment to the Constitution. Tamil was raised to the status of an official language, while English was assigned the position of a “link language.”Footnote 7 Nevertheless, linguistic nationalism and Sinhala-only attitudes still endure among many parts of the population.
7.3 Resurgence of Sinhala-Buddhist Nationalism in Postwar Sri Lanka
Sri Lanka saw a resurgence of Sinhalese Buddhist nationalism after the end of its three-decade-long civil war in 2009, with the emergence of numerous extremist groups of Buddhist monks.Footnote 8 Yet, the driving ideological force that fueled postwar ethnonationalism has shifted from Sinhalese ethno-linguistic nationalism to the global rhetoric of war on terror. For instance, in 2012, an extreme Sinhalese Buddhist organization called the Bodu Bala Sena (Buddhist Power Force or BBS) was created under the leadership of Ven. Galagodaththe Gnānasara and Ven. Kirama Wimalajothi.Footnote 9 One of the key objectives of this organization was to draw attention to the threats of minority ethnic and religious groups, especially extremist Islamic groups, faced by the Sinhalese Buddhists (Zuhair Reference Zuhair2016, 20). The BBS claimed that their major goal was to protect the rights of Sinhalese Buddhists who have no international links, in the face of both internal and external threats. Along with other less prominent organizations such as Sinhala Ravaya, Sinha-le and Mahasohon Balakaya, the BBS launched a virulent anti-Muslim campaign and finally led violent actions against the Muslims in various parts of the island. These movements draw upon this post-independence history of Sinhala-only politics, blending it further with Buddhist nationalism.
7.4 Emergence of the Mahamevnāva Monastery
During this time, a nonviolent movement of televangelist Buddhist monks, collectively part of the Mahamevnāva Monastery (Pāli: Mahāmeghavana), named after the legendary monastery founded by Mahinda when Buddhism was introduced into the island in the third century BCE, has emerged under the guidance of Ven. Kiribathgoda Gnānānanda.Footnote 10 Gnānānanda’s movement has challenged mainstream Buddhist nationalistic politics by criticizing common linguistic and ritual practices with the aim of rediscovering saebae dahama, or the authentic teaching of the Buddha. Defining its religious mission and the Mahamevnāva’s objectives, the website states: “Mahamevnāva Buddhist Monastery was established to benefit the spiritual development of human beings through the teachings of Buddha. Founded in 1999 in Sri Lanka by Ven. Kiribathgoda Gnānānanda Thero, its sole purpose is to spread the original teachings of the Buddha. The monastery is a warm and welcoming place for everyone to investigate true happiness through Dhamma and meditation.”Footnote 11 Several key messages are embedded in this seemingly banal welcome. First, Mahamevnāva identifies with the original teachings of the Buddha, which they believe are found in the sutras of the Pali canon. Mahamevnāva’s stress on the sutras is part of a more general textual orientation for the community, which claims to base its practices not simply on the authority of the Pali texts themselves, but on a particular, authorized Sinhala translation of those texts that the group has produced. Using these texts, they consider the doctrine (dharma) and the monastic code (vinaya) as the twin pillars of Buddha Nītiya (the law of the Buddha), which functions as their religious constitution. According to Ven. Gnānānanda, Mahamevnāva’s mission consists of three major aims, namely, helping the buddha sāsana (teaching of the Buddha)Footnote 12 to endure, ending the suffering of saṃsāra in this life, and preserving the teaching of the Buddha for future generations. He is critical of the current state of Buddhist practice: “What we are doing now is just visiting monks at the temple and talking nonsense with them till evening. We do not discuss anything related to the teaching of the Buddha. Even monks show no enthusiasm to teach anything. We should change this” (Gnānānanda Reference Gnānānanda2010, 36). Gnānānanda’s reformist stance seeks to replace common forms of Buddhism, which he claims have been politicized and influenced by non-Buddhist practices. In its place, he advocates for a fully ‘spiritual’ form of the tradition, which might end the suffering of all. The implication here is that there are other types of so-called Buddhist practices that revolve around false views, not taught by the Buddha. Mahamevnāva ridicules monastic political activism and popular rituals, such as tying banners around Bodhi trees (which are thought to dispel the negative fruits of karma) or reciting protective verses in Pāli by rote memory. These, Mahamevnāva’s monks claim, are ineffective for true spiritual development, and secondary to the practice of the path to liberation that the Buddha has outlined. They lament that the traditional Buddhists (sāmpradaika bauddhayo) who do not follow the noble path to nirvana are Buddhists only by name (namata bauddayo) and are misled by the opportunist monks and politicians who emphasize this-worldly benefits and material wealth. According to Mahamevnāva, the correct path that should be followed by “True Buddhists” (saebae bauddhayo) includes developing an understanding and practicing of the Four Noble Truths, the Noble Eightfold Path, and the system of Dependent Co-origination (paṭicca-samuppāda).
Ven. Gnānānanda has argued that mere knowledge of the religious ideals that were revealed by the Buddha is not enough to be a True Buddhist. Rather, those ideals must be enacted to become free from suffering in this world. He claims that the doctrine of dependent origination, paṭicca-samuppāda, is the real dharma, and should be investigated by people to develop their insight and to become virtuous persons (satpuruṣa): “The Buddha’s teaching is for the wise person. This wise person can belong to any caste, clan, race, or ethnic group. The Buddha’s teaching is not limited to a single nation, it is for the wise man. If there is no wise man in one clan, no one is able to reach out the teaching” (Gnānānanda Reference Gnānānanda2016, 95–96). Ven. Gnānānanda often states that the major threat to Buddhism is the majority Buddhists themselves, who do not follow the teaching of the Buddha; therefore, they are responsible for the declining of the Buddha’s dispensation, the buddha sāsana, in contemporary society. Even though politicized Buddhist monks and their followers fought for the political status of the Sinhala language and Buddhist religion, Mahamevnāva posits that they have neither taught their followers to pursue the correct path of the doctrine, nor hastened the ideal “kingdom/state of the Buddha” (gautama buddha rājya).
7.5 Me gautama buddha rājyayay: “This Is the State of Gautama Buddha”
The desired gautama buddha rājya is not a specific polity defined by a set of secular laws, geographical boundaries, or specific political authority, but a more general climate in which the Buddhist doctrine reigns supreme. Consider, for example, the following statement in their official print magazine, Mahamēgha:
If there is an undefeatable supreme state in the entire human history, that is the State of Gautama Buddha (gautama buddha rājya) and neither humans nor super-human forces can overthrow the powerful rule of the supreme lord Buddha. In this supreme state of Gautama Buddha there are no territorial boundaries, ethnic disparities, or any other divisions such as clergy-laity, gender. Hence the unity of this state cannot be broken. Anyone who believes in the supreme power of the Buddha and accepts him as the only king and his doctrine as the supreme rule, establishes strong connections with the other noble citizens. They are protected by the unity of the state. True guardians of the state of Gautama Buddha are the ones who follow the Buddha and his doctrine.
What is notable here is that Mahamevnāva’s definition of the Buddhist state appears to draw inspiration from Sri Lanka’s secular Constitution. Similar to protecting Buddhism’s “foremost place” in the Sri Lankan Constitution, which also protects the rights and freedoms of all citizens, the buddha rājya of Mahamevnāva’s celebrates the “true Buddhist” which anyone can be.
A secular-legal mentality also appears to apply to the Mahamevnāva’s criticisms of the activities of politically active Buddhist monks who, in their estimation, attempted to rule the country rather than practice the doctrine or guide their lay followers on the path of nirvana. For Mahamevnāva, the disappearance of true dharma is caused mostly by the decline of the vinaya (monastic discipline) with the emergence of such politized Buddhist monks. Ven. Gnānānanda posits:
We should clearly understand the [real] followers of [the Buddha]. We follow the maharath (monks who attained nirvana), who followed the noble teaching of the Buddha to achieve different levels of spiritual liberation. Monks in the Buddha’s time dedicated themselves to cultivate sīla (virtuous conduct), samādhi (concentration) and prajñā (wisdom). We can also develop śraddhā (faith) when we think about these noble followers of the Buddha. Can you build śraddhā when you see a Buddhist monk making a political speech on a stage? Or by seeing a misbehaving monk in a protest?… We should have the ability to differentiate the followers of the Buddha from the others. Who is on the path of doctrine? Who is not? Then, you will realize who is truthful and who is not.
Mahamevnāva laments that the decline of the “true teaching” in the island occurred from time to time due to both internal and external forces. For instance, Ven. Gnānānanda posits that the historical decline of Gautama Buddha’s sāsana happened in the late medieval period of Sri Lankan history, when “Mahāyāna influences” arrived from India and led people to aspire to become Buddhas and to see the future Buddha Maitreya (Gnānānanda Reference Gnānānanda2004, 42). In contemporary society, such decline is caused by the ignorance of the lay people misguided by politicized and opportunist monks.
Also apparent among Mahamevnāva Buddhists is an attitude towards the Buddha’s teaching, or dharma, that treats it as a constitution for everyday life, a set of rules applicable to everyone in the world. In their rendering, Buddhism is not merely a religion of blind followers, but contains the true principles of the world itself, the loka dharmaya. Due to influences of other religious rituals and misinterpretation of the dharma, the philosophical value of the dharma has been covered with false faith. During an interview I conducted with Ven. Bandarawela Saddhasheela, a young Mahamevnāva monk who was residing in Mahamevnāva Monastery in California, he said that the terms Buddhist or Buddhism themselves emerged very much later, when the idea of religion became prominent. For him, there was no religion called Buddhism during the Buddha’s time and the followers did not identify themselves as Buddhists. What Siddhartha Gautama did, according to Ven. Saddhasheela, was to preach loka darmaya, and the people who had the wisdom and accumulated good karma could realize it through listening to him.Footnote 13
Mahamevnāva’s focus on the gautama buddha rājya, which is governed by these dharmic ideals, serves to orient the group’s reformist project towards a transnational Buddhist citizenship. Explaining who is a “True Buddhist citizen” (saebae bauddha puravaesiya), Ven. Gnānānanda explains:
We all are blessed because we have the opportunity to listen to the teachings of the Buddha. There are no divisions based on ethnicity, caste, religion or clan in it … Nobody is superior because of the language he speaks. No matter whether he speaks English, Tamil, or Sinhala, it does not make anyone superior. Even the skin color does not make anyone superior … Anyone can be superior depending on the good or bad karma he commits.
This broadly inclusive stance has assisted Mahamevnāva in expanding their movement across multiple continents and creating a single ethical community. Since the establishment of the first branch of the temple at Polgahawela, Sri Lanka, in August 1999, the organization has expanded to seventy branches in Sri Lanka and worldwide including the United States, Australia, India, Canada, Germany, England, and Dubai. This network is instrumental in establishing their imagined state of Gautama Buddha across geographical, ethnic, caste, and class boundaries.
Mahamevnāva has also adopted modern media and technology to disseminate their interpretation of Buddhism among the members of this transnational Buddhist state. It is the first organized Sri Lankan Buddhist group to adopt multimedia technologies – including TV, radio, print media, and internet – as part of their religious mission. They also use modern televisual technologies such as drones, camera-equipped helicopters, and other audio-visual techniques to create new ritual spectacles, meaningful for media modalities such as TV, radio, DVD, and the internet, and to make these rituals accessible to their wider transnational audience.
7.6 Linguistic Reformation in the Buddhist State
While Mahamevnāva’s reformation poses challenges to mainstream Buddhist monastic politics and rituals, it holds different ideologies about the religious language of their imagined Buddhist state. On the one hand, they stress that the authentic teachings of the Buddha can be found in the Pāli canon. On the other hand, they argue that the doctrine should be rendered in a simple, vernacular language so that Buddhists may understand it. In this way, Mahamevnāva downgrades the authoritative status of Pāli in traditional Buddhist practice, while also questioning the language’s inherent sacredness and disavowing the idea that simply chanting Pāli verses produces supernatural powers.
This attitude towards Pāli is an innovation. Although monastic politics during the colonial and postcolonial period has been anchored in the status of Sinhala, Pāli central importance in Sri Lankan Buddhism was never in dispute. Pāli is an Indo-Aryan language, and its origins go back to the ancient Indian language called Māgadhi, spoken in the state of Magadha where the Buddha spent the greater part of his life. Theravāda Buddhists believe that the truest and most authentic versions of the earliest and most important scriptures, such as the “The Three Baskets,” were preserved in Pāli.Footnote 14 The Dīpavaṃsa and Mahāvaṃsa, the two major chronicles in Sri Lanka, relate the writing down of the scriptures in Pāli during the reign of the Sri Lankan King Vattagāmani Abhaya (89–77 BCE). In some cases, Pāli was even used as a medium of communication between kingdoms in the premodern Buddhist world (Blackburn Reference Blackburn2010).
In fact, a second language ideology runs alongside the Sinhala-only attitude described above. This ideology, which is held among many Buddhists in Sri Lanka, maintains that Sinhala is a “low” and colloquialized language derived from the “high” language of Pāli, in which Buddhist texts and rituals are preserved (Ferguson Reference Ferguson1959, Gair Reference Gair, Krishnamurti and Sinha1986, Paolillo Reference Paolillo1997). Moreover, given that Pāli is imagined to be the language of the Buddha himself, its sound and appearance are thought to be inherently efficacious, capable of generating karmic merit and having a protective effect (Hackett Reference Hackett, Stausberg and Engler2011). Deegalle Mahinda documents a number of verbal rituals and preaching styles prevalent in traditional Sri Lankan Buddhism that exemplify the place of Pāli acoustics in those rituals (Reference Deegalle2006). Among these are the modern poetic genre of preaching called kavi bana, devotional hymns or gāthā, and protective verses (paritta), that form a central part of many Buddhist rituals. For devotees, the sacredness of these verbal rituals is derived from the acoustics of Pāli language and unique verbal styles.
For Mahamevnāva, Pāli is an unintelligible language for their followers, which makes them ignorant of true dhamma. Therefore, Mahamevnāva argue that colloquial Sinhala should be used for religious activities, as it is for other modern activities including public law. Highlighting the importance of comprehensible language in achieving their religious mission, the official website of Mahamevnāva states:
Here the Buddha’s teachings are presented in modern language that is easy to understand. What makes Mahamevnāva unique is the effort to bring the Supreme Dhamma to listeners in its original form. Because of this, both young and old listen to the Dhamma and practice virtue, concentration, mindfulness and wisdom to realize the Four Noble Truths revealed by the Supreme Buddha. Presently there are more than 650 monks, more than 100 Anagarika nuns, and thousands of lay disciples practicing Dhamma at Mahamevnāva Monasteries around the world.
The program of Mahamevnāva is in large part directed toward bringing Sinhalese Buddhists toward an authentic understanding and practice of the Buddha’s dhamma through simplified language. Their emphasis on simple Sinhala in disseminating dhamma serves to orient their teachings to a transnational Buddhist audience affiliated to their branch temples around the world. Ven. Gnānānanda maintains that he was able to learn the true dhamma by studying the Pāli canon directly in Pāli, which required years of study. By translating these texts into vernacular, he hopes people will arrive at a similar knowledge of the truth discovered and taught by the Buddha.
Ven. Gnānānanda’s linguistic ideology also aims to ‘disenchant’ Pāli by clearing from some of its magical associations. For example, he posits in one of his sermons that most Buddhist monks do not know the meaning of many of the protective verses they chant in Pāli. According to him, these monks utter aspirated sounds in these Pāli verses expecting those sounds to extinguish the non-human evil forces and that there is no logic behind this other than ignorance. These misbeliefs, he points out, are caused by ignorance of the true dhamma, one which has existed among Buddhists for centuries. In a statement that resembles the interpretive attitude of many public law jurists, Ven. Gnānānanda insists that protection from the spiritual law (the dhamma) can be expected only when one fully and accurately understands it.
The parallels between Sri Lankan constitutional law and ‘true’ Buddhist practice were even more pronounced in a discussion I conducted with a Mahamevnāva monk, who argued that:
even though the Constitution of Sri Lanka favors Sinhala and Buddhism as this is a Sinhala-Buddhist country, our monks have failed to disseminate the Buddha’s word in intelligible language so that the entire Buddhist state is at risk. Real followers of the Buddha are not the Buddhists by birth who blindly follow the religious rituals or recite hymns and protective verses (paritta) in Pāli by heart, but the ones who understand the doctrine and practice meditation.Footnote 15
In other words, in order to fully realize the guarantees of Sri Lanka’s Constitution and to safeguard Buddhism, Buddhists had to fully understand the teachings of the Buddha. According to this monk and Mahamevnāva more generally, the proper enactment of Sri Lanka’s constitutional language depended on the proper recognition of the Buddha’s religious language.
7.7 Popularizing Religious Texts and Rituals in Sinhala
In order to make colloquial Sinhala the medium of the true doctrine, Mahamevnāva has translated the threefold Buddhist canon and protective verses from Pāli to simple Sinhala, and they are developing novel forms of chanting and devotional rituals. In the book series of Mahamevnāva Tipiṭaka translation entitled Mahamevnāve Bodhi Gnāna Tripitaka Granta Mālā, there is a Sinhala verse translated from Pāli highlighted in the title page. The verse explains that “the dhamma (doctrine) and vinaya (monastic code) are shining only when they are exposed, not when they are hidden” (Mahamevnāve Bodhignāna Tripitaka Granta Mālā 2004), indicating that the teachings of the Buddha should be in a comprehensible language in order for the followers to easily understand them.
In addition to translating the Tipiṭaka and protective verses from Pāli to Sinhala, Mahamevnāva has published more than 100 books in simple Sinhala, including books of Buddhist stories aimed at children. Their Mahamēgha monthly magazine attracts thousands of Sinhalese readers while the Shraddha television channel, Damviru radio channel, and YouTube video channel are popularizing among the Sinhalese around the world a vernacular version of Buddhism through innovative televised rituals.
These activities of vernacularization of religious texts can be understood in the larger discourse of religious language planning. As Sinnemäki and Saarikivi suggest, there are two competing processes at work in language planning in many religious communities: the preservation of doctrinal purity and the unity of the community, on the one hand, and the need to understand the sacred texts and doctrine, on the other (Reference Sinnemäki, Saarikivi, Sinnemäki, Portman, Tilli and Nelson2019). They argue that translations that alter the understanding and expression of a religion may prove harmful for unity and continuity, because languages never have identical semantics and the metaphors typical of each language are culture-bound. The same conflict arose when the Mahamevnāva Tipiṭaka translations provoked a backlash from mainstream Buddhist monks. For instance, the late Ven. Bellanwila Wimalaratana, a well-known and outspoken Buddhist monk, at a public gathering in Colombo in 2013 criticized Mahamevnāva’s use of “vulgar Sinhala” (hadu Sinhala) for the Tipiṭaka translations because, according to him, it challenges the purity of the dhamma in Pāli language and that of the Buddhist tradition. When I asked Ven. Saddhasheela of the Mahamevnāva to comment on these allegations during my encounters with him, he claimed that the purity or impurity of dhamma relies not upon the vehicle in which it is transported, but the accuracy of the content.
Most recently, Mahamevnāva translated the Mahāvaṃsa (Great Chronicle), the most celebrated literary work in Sinhalese Buddhist nationalism, into simple Sinhala from Pāli. Originally written during the sixth century CE in the Anuradhapura period and attributed to a Buddhist monk named Mahānāma, the Mahāvaṃsa consists of thirty-seven chapters describing the founding of the Sinhala kingdom by Vijaya, who migrated from India during the sixth century BCE, as well as the history of Buddhism up to king Mahāsena, who lived during the third century CE.Footnote 16 More importantly, the chronicle legitimates the relationship between Sri Lanka and Buddhism by claiming that Buddha chose the island to preserve and promote his teachings. Sinhalese Buddhists thus ardently hold that Sri Lanka is sinhaladipa (the island of the Sinhalese) and dhammadipa (the island containing Buddha’s teachings).
The Mahāvaṃsa was first translated into literary Sinhala between 1877 and 1883, during the British colonial period by Ven. Hikkaduwe Sri Sumangala and Don Andris de Silva. Ven. Gnānānanda translated the chronicle again into colloquial Sinhala and the final volume of the series of the translation was launched in 2019 during a ceremony named Mahāwanshabimāni held in the Mahamevnāva temple in Kaduwela. The president of Sri Lanka (2019–2022), Gotabhaya Rajapakse, who was then a presidential candidate, attended the ceremony as the chief guest, and the first copy of the translation was handed over to him by Ven. Gnānānanda.
At the launch ceremony, Ven. Gnānānanda made a speech where he stated that all Sri Lankans, including Buddhist monks, are ignorant of history. Therefore, according to him, these Buddhist monks shamelessly propagate ideas against both Buddhism and the history of the Sinhalese people. The only way that the nation can be protected is by making the Mahāvaṃsa available for a broad readership. In addition, Gnānānanda said that he translated the chronicle into simple Sinhala in order to make it easier for the public to read and learn about the Sinhalese nation, buddha sāsana, and the role of the Buddhist clergy. Strongly apparent in this speech, then, was the linkage between linguistic purity and religio-national flourishing. As with the decades of legal discussions that had occurred over the twentieth century, prioritizing Sinhala was cast as the key to ensuring the future of Sri Lanka.
Yet, Mahamevnāva has gone further to link Sinhala language with Buddhism and the idea of a Buddhist state, using the appeal of popular culture. Consider, as one example, the creation of a mega-ritual called arahantaka vandanāva, or “the veneration of enlightened monks,” organized in 2017 in Polonnaruwa, which included music and songs. The ritual was a massive public celebration broadcast over all Mahmevnāva’s media outlets. The opening of the ritual was a recorded song in Sinhala performed by professional singers while the attendees were engaged in the act of arahant veneration. The lyrics of the song describe the Buddha’s path as the only way of liberation, and with the merits people gain from arahant veneration, they accumulate merit toward achieving nirvana in this life. The melody of the song makes it closer to secular songs rather than to the rhythm and style of stereotypical Mahamevnāva hymns.
The incorporation of these popular aesthetic forms in religious rituals set them apart from the dominant religious public, while it appeals to the interests of a wider audience. In an interview I conducted with a woman in her mid-twenties who attended the ritual with a group of friends, she revealed that these innovative aesthetic practices are important means to distract them from popular music, which attach them to this-worldly suffering. Further, she asserted that these recorded songs can be enjoyed over and over again whenever she wants to motivate herself to practice dhamma.
Scholars recognize that the consumption of popular culture in religious or political traditions creates new forms of publics across the world. For instance, Charles Hirschkind’s work analyzes the production of Islamic recorded sermons vis-à-vis a recalibration of politics in Islamic countries (Hirschkind Reference Hirschkind2006). Junxi Qian proposes that the public singing of nationalist songs can constitute an alternative community through the agentive reinterpretation of lyrics (Qian Reference Qian2014). As Shoemaker (2017) posits, the recognized characteristic of these productions is that they offer a dialogical space that resists normative tropes and complicates the ways in which audience understands marginalized groups, religious or political positions, social issues, or social life differently from the way mainstream consumers do.
In Mahamevnāva’s case, Sinhalized styles in rituals and texts allow them to constitute new religious identities within the same religion and pose challenges to the linguistic ideologies of mainstream Buddhism, establishing alternative religio-linguistic nationalism. Through the use of constitutional language for religious rituals and religious texts, Mahamevnāva attempt to democratize Buddhist practice, allowing the public to access what they believe is “true” doctrine. Similarly, Sinhalized ritual forms and texts created by Mahamevnāva constitute a language community which is part of their imagined gautama buddha rājya. These rituals function as boundary markers for their group, which, like a constitutional public, binds both monks and laypeople in a single imagined collective. These textual and ritual practices confirm Michael Warner’s idea that publics rely on archived and indexed records of their texts and discourses to establish “style” that allow “participants in its discourse to understand themselves as directly and actively belonging to a social entity that exists historically in secular time and has consciousness of itself, though it has no existence apart from the activity of its own discursive circulation” (Reference Warner2002).
The relation between Buddhism and constitutional law is not just a one-way story of Buddhist influences on public law. It is also a story of how concepts and ideas that are prominent in constitutional design and interpretation come to influence Buddhism. Mahamevnāva is a perfect example of this for two reasons. First, they have taken the linguistic ideology of Sinhalese nationalism, which was central to constitutional practice in post-independence Sri Lanka and made it the language of Buddhism. Ven. Gnānānanda has reshaped the “official” language of public Buddhism in much the same way that constitutional experts have reshaped the official public language of Sri Lanka. In both cases, a Sinhalization program has taken place. Although these Sinhalization projects did not overlap in time, they can be seen as emerging from similar and connected historical trajectories, running from colonialism to anticolonial movements, to projects of populist nationalism. In its own programs of religious reform, the Mahamevnāva group has creatively borrowed the prestige of Sinhala language – acquired through the Constitution and nationalist politics – and deployed it in religious reforms to constitute an ideal religious state. In other words, debates over constitutional law have, today, found their way into debates over Buddhism.
Second, Mahamevnāva has in its own way taken up the very concept of constitutional law: it has transformed the constitutional principle that the law of the land should be accessible to and representative of the nation and turned it into a soteriological principle – that the Buddha’s dharma should be available and interpretable to all. The constitution of a country is a set of rules regulating the powers of its government and the rights and duties of its citizens. A codified constitution is one in which key provisions are collected together in a single legal document; it should be accessible and representative of its citizens. Mahamevnāva monks have borrowed this principle to make Buddhist doctrine transparent and accessible to its followers. Vernacularizing religious and historical texts, rebuilding religious rituals, and circulating them among a transnational audience through modern media technologies are key strategies in a broader mission of democratizing Buddhist doctrine – and with it, the pursuit of nirvana. Both of these interactions between the Constitution and the Mahamevnāva reforms embody similar forms of linguistic ideology in which the ideal state can be realized by creating “public” texts for the uplift of the “nation.”
8.1 Beyond Sangha and Religious Freedom
Discussions of Buddhism and constitutional law tend to focus on a relatively limited set of topics, usually freedom of religion (Khemthong Reference Tonsakulrungruang and Po Jen2021) and the administration of sangha (Larsson 2018; Katewadee Reference Kularbkeaw2019). While important, such narrow coverage implies that the modern legal system of Thailand has already broken away from the past because it insinuates that Buddhism’s influence on law is presently confined to only a few aspects of law that explicitly deal with religion. Often, these studies treat law as a set of positive rules, adopted from the European and Anglo-Saxon cultures, to replace the traditional code of Buddhist-inspired dhammasattha. Law, especially a constitution, is taken to represent modernity.
Recently this view has been facing growing challenges. While it is true that the contemporary Thai legal system is a Western import, a growing body of literature is beginning to suggest that certain ancient elements are still active and vibrant, shaping the conscience of legislators, law enforcers, lawyers, and judges alike (Harding & Munin Reference Harding and Pongsapan2021; Thongchai Reference Winichakul and Winichakul2021; Mérieau Reference Mérieau2018; Dressel Reference Dressel2018; Streckfuss Reference Streckfuss2011). Thai legal scholars in particular are often criticized for a lack of awareness of these issues (Thongchai Reference Winichakul and Winichakul2021, 114) given that they focus on comparative work, looking for the right model to be adapted into the local context – without realizing that it is the local context that makes these transplants problematic.
This chapter seeks to challenge these trends. It argues that Thai constitutional law, in particular in the last decade, is heavily influenced not only by the Western idea of liberal democratic constitutionalism but also traditional ideas of power derived from Thai Buddhism. Notions of dhammarāja are clearly important in this regard (Mérieau Reference Mérieau2018). Yet there are other notions, relating to the king’s role in political and constitutional crises and to the overall structure of the supreme law of the land. Particularly important are the ways in which constitutional design has become the battleground for ideological contestation between liberal democracy, which relies on the popular mandate as the source of political legitimacy, and the Buddhist concept of barami, the perfect man. The contest has become particularly acute in recent years when Thailand has taken an undemocratic path.
This chapter examines how previously existing Buddhist notions, such as barami, have enabled the phenomenal rise of the judiciary and other elite agencies, which have lately become the imposing forces that steer Thailand’s constitutional regime further away from liberal democracy. Even the high point of democratic constitutionalism, the adoption of the 1997 People’s Constitution, turns out to have also provided resources for barami-type notions of public authority. The chapter begins with recent history and then turns to explicate the notion of barami and its continued relevance.
8.2 The Rise of Unelected Elites
Thailand’s constitutional history is a turbulent one. In 1932, Siam ended absolute monarchy and introduced the concept of constitutional democracy, but an alliance of royalist conservatives and military dictators interrupted the democratization process. Coups occurred regularly whenever the military felt that electoral politics had reached a deadlock. Still, liberal democracy clung on and occasionally emerged, first among university students and, later, the middle class (Hewison Reference Hewison2015). Sometimes crises arose when the two factions – military and democratic reformers – clashed. The king would intervene as a deus ex machina to preserve the fragile political equilibrium (McCargo Reference McCargo2005). Thailand’s turbulent political history reflects this ongoing struggle, which resulted in a high constitutional turnover. The sixteen years since the 2006 coup have witnessed a continuation of these general trends in contemporary Thai constitutional law.
Since 2006, constitutional development has been characterized by the rise of the judiciary in politics, a phenomenon known as “judicial activism” (Dressel & Khemthong Reference Dressel and Tonsakulrungruang2019, 6; Khemthong Reference Tonsakulrungruang, Chen and Harding2018; Dressel Reference Dressel2010). This phenomenon is characterized by the fact that judges feel empowered to assert their preference on political decisions (Barroso Reference Baker and Phongpaichit2019). This activism began in 2006, together with the coup and the beginning of democratic decline. Mass protests and two coups in 2006 and 2014 undermined the democratization that had been achieved under the 1997 Constitution. Right-wing conservatives occupied key public offices, including constitution-drafting bodies, while nationalism, royalism, and moralism were offered as antidotes to the Western imports of democracy and liberalism (Hewison Reference Hewison2015, 57–60; Ukrist 2008). Inevitably, the last two constitutions of 2007 and 2017 tilted Thailand further toward authoritarianism.
However, attributing all of this to judicial activism is misleading. These activities involved not only the judiciary but also other unelected bodies. Judicial activism that took place in 2006 is only one symptom of a constitutional design that had reshaped politics since its beginning a decade earlier. In 1997, Thailand carried out a major reform to consolidate its democracy and permanently end military intervention. On the one hand, the 1997 Constitution promoted the idea of popular sovereignty with a progressive bill of rights, a new electoral system that favored national-level parties, and several mechanisms to assist a prime minister to boost his leadership (Borwornsak Reference Uwanno2010, 41). On the other hand, the charter also introduced new constitutional bodies that could serve as final arbiters, outside the usual group of army generals and the king (McCargo Reference McCargo1998). The 1997 drafters further identified corruption as a key threat to the democratically elected government (and key justification for previous military intervention). Therefore, the drafters suggested stronger checks and balances and better monitoring procedures by introducing a new set of watchdog agencies that were autonomous and more powerful (Thailand Research Fund 2017).
As a result, the 1997 Constitution established a number of new actors: the Constitutional Court, the Administrative Court, the Criminal Division for Political Office Holders of the Supreme Court, the National Anti-Corruption Commission (NACC), the Election Commission (EC), the National Human Rights Commission (NHRC), the Ombudsman, and the Auditor General Office (AGO). Their mission was to uphold the sense of accountability of elected politicians without external help from the military. The NACC acted as a prosecutor for high-profile corruption cases. The EC was an election organizer. The Ombudsman heard general complaints, while the NHRC focused on human rights cases. The AGO audited the government’s finance. The judicialization of Thai politics occurred also because some important cases would be referred to the abovementioned three courts.
Whereas independent regulatory agencies were already part of the Thai administrative branch, these independent accountability agencies – the watchdogs – were novel and were not categorized into the same group. The 1997 Constitution intended these watchdog agencies to be non-partisan independent bodies (Dissatat Reference Hotrakit and Srukhosit2011) and placed them under neither the parliament nor the cabinet. Procedures for appointment and removal were prescribed in the constitution: a panel of professionals, representatives of political parties, as well as civic societies, would convene to nominate a candidate, who had to meet very high standards of expertise and ethics, before the non-partisan senate approved the list. Once appointed, their terms in office outlasted those of the government. They enjoyed autonomy in managing their own budget and personnel. Overall, these watchdog agencies gave an impression similar to that of the judiciary: they acted as guardians of democracy against short-sighted and self-interested elected politicians. Yet, there was no effective mechanism to watch the watchdogs. They were not subject to political oversight. Theoretically, they were still liable for criminal offences and impeachment for high crimes.Footnote 1 But their decisions would not be judicially reviewable.
The first few years were promising. The Constitutional Court handed five-year bans to those politicians who failed to disclose their assets (Harding & Leyland Reference Harding and Leyland2010, 180). One minister was convicted for corruption, an unprecedented event.Footnote 2 Elections were mostly free and fair. Inquiry by NACC and AGO instilled a greater sense of transparency and accountability in the civil service. However, in late 2005 a constitutional crisis emerged. The highly popular Thaksin Shinawatra, who came into power in 2001, had skillfully dominated the parliament as well as watchdog agencies, effectively rendering the new check-and-balance mechanisms useless. His regime was tainted by human rights violations, harassment of his political enemies, and corruption (Kasian Reference Tejapira2006). Unfortunately, through lobbying and manipulation, Thaksin was able to coopt the Constitutional Court, NACC, and EC, so that they all refused to investigate allegations of his corruption (Kasian Reference Tejapira2006, 28–29). Their inertia led to a growing sense of distrust among the public.
The prime minister’s ambitious rise alarmed many Thais who formed an opposition movement (Hewison Reference Hewison2010, 27) which eventually grew more radical. The anti-Thaksin movement blamed the constitution and liberal democracy for being the root of these recent political evils. A key strategy of the movement was to turn legal and political issues into moral ones. Thaksin was portrayed as a greedy, disloyal, and immoral representative of ‘imported’ electoral democracy. Thaksin’s opponents, by contrast, were associated with patriotism, Buddhism, and, most importantly, royalism as preferable choices for Thailand (Connors Reference Connors2008, 154–155; Ukrist 2008). In this way, their campaign resonated deliberately with the traditional three pillars of “Thainess”: namely, the nation, the religion, and the king. Opponents of Thaksin even asked the king to take over control from Thaksin (Connors Reference Connors2008, 155–156). This was the beginning of Thailand’s moralistic politics, known as khon dee politics (politics of the righteous people), which emphasizes appointing righteous persons to public office to rule over an ignorant populace.
The first round of conflict culminated in the 2006 coup, led by radical conservatives, and fueled by animosity towards democracy. The coup leaders invited the return of the military and of several of the temporarily disbanded watchdog agencies. Members of the EC were even sentenced to imprisonment. But the 2006 coup was also a turning point in the conception and deployment of the watchdog agencies. The right-wing conservatives appreciated the role and capacity of the judiciary and agencies in imposing constraints on elected politicians. They appreciated especially the Constitutional Court’s invalidation of the 2006 election (Khemthong Reference Tonsakulrungruang, Chen and Harding2018, 200–202). Thus, in designing the 2007 Constitution, conservative politicians restored and further empowered these watchdog agencies. Thailand’s judiciary had long been a passive accomplice of coup makers, endorsing the legality of every coup since 1947 (Piyabutr Reference Saengkanokkul2017). However, the anti-democracy camp in 2006 enlisted the judiciary as an active player in punishing its political enemies.
The 2007 Constitution hinted at the new understanding of these agencies. Firstly, Section 3 of the constitution makes the legislative, executive, judiciary, and constitutional agencies, as well as other state agencies, subject to the rule of law.Footnote 3 The clause implicitly acknowledged watchdog agencies, which the new constitution referred to as the constitutional agencies, to be detached from the threefold separation of power. Secondly, the new constitution amended the rule on nominations of the watchdogs, making the process more politically isolated and homogenous. The numbers of political representatives in the nomination commission were reduced, and the commission was to be dominated by representatives of the judiciary and of other watchdog agencies.Footnote 4 This homogeneity, together with absence of political oversight, allowed conservatives to capture the nomination process and recruit only from a pool of right-wing candidates (Dressel & Khemthong Reference Dressel and Tonsakulrungruang2019). Watchdog agencies were still unaccountable, but they would now work in the interest of the antidemocratic faction. The third and most crucial change applied to the legal authority of the watchdog agencies. The constitution gave more bite to weaker bodies. Most interesting was the Ombudsman’s new duty of preparing the code of ethics for other agencies, hence acting as the moral policeman for the entire group.Footnote 5 This office gained tremendous power to oversee the other branches of the government with virtual impunity.
Post-2006 politics was characterized by the growing role of these unelected bodies in toppling democratic governments linked to Thaksin, and the endorsement of Thaksin’s enemies. The EC filed a petition to dissolve Thaksin’s proxy, the People’s Power Party, but spared his rival, the Democrat Party, by failing to submit the complaint in time (Khemthong 2016, 180–182). The NACC relentlessly investigated Thaksin’s men for failing to follow a constitutional protocol on treaty-making, as well as the rice subsidy scheme. But the NACC never pursued a case against the Democrat Party. The agency dragged its feet in investigating the Democrat Party and the Royal Thai Army’s role in a deadly 2010 crackdown on Thaksin’s supporters (Haberkorn Reference Haberkorn2018, 194–201). The NHRC, for its part, refused to acknowledge any human rights abuses related to that crackdown. Most importantly, the Constitutional Court disqualified many of Thaksin’s allies from office and blocked key policies (Khemthong Reference Tonsakulrungruang, Chen and Harding2018 and Reference Kularbkeaw2019). The Constitutional Court was accused of corruption, but no action was taken (Khemthong Reference Tonsakulrungruang, Chen and Harding2018, 189). In its decisions, the court often showed distrust toward politicians while emphasizing morality as a pretense for overriding the majority’s choice (Khemthong Reference Tonsakulrungruang2017). A volley of lawsuits badly jeopardized the legitimacy of the democratic government, leading ultimately to another coup d’état.
When it became clear that the conservatives could never defeat Thaksin in normal electoral politics, another mass protest shut down Bangkok for months. On 22 May 2014, a junta calling itself the National Council of Peace and Order (NCPO) overthrew the government in a coup. Even compared with many earlier coups, it deployed excessive force by incarcerating, detaining, torturing, and even murdering thousands of people – many of whom later fled abroad (Amnesty International 2014). The unelected watchdog agencies kept silent about such abuses. The NACC and NHRC refused to investigate corruption scandals and human rights violations of the junta. The Constitutional Court raised no objection to the junta’s legitimacy. Meanwhile, the EC helped intimidate dissidents in the 2016 constitutional referendum (Desatova & Alexander Reference Desatova and Alexander2021) and the NACC charged Yingluck Shinawatra and her ministers of corruption.
Watchdog agencies continued to gain influence under the 2014 junta. The 2017 Constitution modified the nomination process by further streamlining the nomination panel for these agencies to a small group from the judiciary and fellow watchdog bodies.Footnote 6 Given that the junta-appointed National Legislative Assembly acted as the new senate, the junta was effectively able to nominate its sympathizers and cronies into the watchdog agencies. Under the 2017 Constitution, the NACC can now investigate not only criminal cases but even cases of ‘unethical conduct.’Footnote 7 With the 2017 charter, the EC can order a new election in case of possible fraud,Footnote 8 while the Ombudsman has powers to report directly to the cabinet if the agency fails to address its recommendation.Footnote 9 In fact, the NHRC is the only body that has had its power diminished. It can no longer file a case of human rights violation against a state agency and is now in charge of defending the Thai government in cases of human rights reports that wrongly or inaccurately accuse the state.Footnote 10
8.3 Barami as Political Authority
The rise of unelected bodies, like those in Thailand, has been well documented worldwide. The phenomenon is generally associated with democratic deficits: when the existing political mechanism fails to make sound public policies, a novel institution replaces the old one, bringing with it impartial scientific or economic expertise (Vibert Reference Vibert2007; Veerayooth Reference Kanchoochat2016). However, Thailand’s empowerment of independent constitutional agencies is different. Watchdog agencies are concerned with accountability, not with regulation. They are not a response to democratic shortfalls in decision-making but to perceived moral deficiencies. Therefore, Thailand’s constitutionally created watchdog agencies act not as regulatory experts, but as moral authorities designed to restrain immoral politicians.
How could the few govern the many? While vox populi is often regarded as the source of legitimacy in a democratic regime, not all regimes or institutions reflect this. Unelected regulatory agencies may claim impartial knowledge as justification (Vibert Reference Vibert2007, 116), yet watchdog agencies in Thailand can claim no such expertise. Their source of legitimacy is linked instead to Buddhism, and the ancient concept of moral perfection, or barami.
8.3.1 Understanding Barami
A belief in karma (in Pali, kamma) – moral laws of cause and effect – forms the basis of Thai Buddhism. Simply put, a person reaps what he or she sows. Good deeds result in merit (bunna), while evil deeds generate their own negative results (Ishii Reference Ishii1986, 14–16; Jackson Reference Jackson1989, 40–41). Merit that is acquired through good deeds in this life insures a better situation in the next life. The system is not supposed to be deterministic, however, people commonly believe that they are born in their current condition because of the amount of merit and demerit accumulated in past lives. Buddhism encourages a person to constantly improve one’s fortune by making new merit and avoiding committing further evil. Ultimately, a person with high merit will obtain true understanding of the Buddha’s teaching and gain release from the cycle of rebirths by attaining nirvana, at which point all of one’s sufferings will come to an end.
For most people nirvana is a distant prospect. Monks might be interested in this spiritual goal, but ordinary folks are generally not ready to follow such practices of renouncing the mundane world. Their goals tend to be more practical and materialistic, such as improving their worldly situation. A person of high merit is said to enjoy wealth, wisdom, or good family fortune, for example (Terwiel 2012, Chapter 9), whereas demerit produces undesirable consequences, including poverty, ailment, or demotion at work.
Thai Buddhists believe that some forms of good karma produce not ordinary bunna, but a quality known as barami. The relationship between the two, bunna and barami, is not always clear but barami is used principally in a political sense. Although there is no perfect translation, barami is understood as perfection or virtues (Jory Reference Jory2016, 15–18). It can be used as ‘power,’ and a person with a high level of barami is fit to rule.
Examples of barami appear in stories about the Buddha’s various rebirths, which treat him as a personification of dhamma (Nidhi 2012, 329–330). The stories often emphasize that, to become a buddha, a person must accumulate the ultimate level of barami, which could only be achieved through countless rebirths. It is a journey spanning eons and involving rebirth as various life forms, for example, an elephant, a quail, a deer, or a prince. In each life, the buddha-to-be is described as undergoing adventures that demonstrate certain kinds of virtues. In Thai versions of these stories, many incarnations are similar to quests that the Buddha must overcome to gain more barami. Gradually, he perfects himself, therefore reaching the status of Buddha. These stories, known as jātaka, are weaved into a larger tapestry of time, connecting the previous buddhas with the coming Maitreya Buddha of the future (Nidhi Reference Eowsriwong2012, 331–340).
Accounts of jātaka are scattered throughout Buddhist texts, both in the canon (the Tipiṭaka) and outside of it (Baker & Pasuk 2019, xix–xxi). Jātakas often begin with a framing story explaining how a previous rebirth is linked to the present one: an incident, cause célèbre, or a dispute among monks. The story often ends with some moral guidance in which characters in the story are linked to particular people in the Buddha’s life, as previous incarnations, or the Buddha’s close associates or enemies.
Jātakas are a major source of Buddhism through which many Thais learn about religion. Particularly in premodern times, few people read the canon, which was written in Pali on a palm leaf. Sacred books were to be worshipped, in many cases, not studied. The canonical approach to Buddhist studies would not begin until the turn of the twentieth century, when King Chulalongkorn ordered his half-brother Sangha Raja to reform monastic education (Phibul Reference Choompolpaisal2015, Ishii Reference Ishii1986, 85–88). Jātakas by contrast were treated as entertainment because they entailed life and death and other drama and were easy to tell orally to illiterate locals through performance (Jory 2016; Baker & Pasuk 2019, xii). Later generations ‘borrowed’ the religious credibility of the stories and added their local lore into the jātaka genre, expanding the local jātaka universe (Baker & Pasuk 2019, xvii–xix).
In this worldview, the Buddha stands as the most meritorious, most perfect person of our time. But there are several other individuals endeavoring to reach such exalted status. They are known as bodhisattvas (Pali: bodhisatta), those on the path to becoming the future buddha (Jory Reference Jory2016, 17–19). Many Thai kings were identified as bodhisattva, associating their political power with moral superiority (Jory Reference Jory2016, 50–54; Skilling 2007; Sweaerer Reference Sweaerer2010, 105). In this way, the concept of barami came to explain the king’s authority over his subjects. As the most perfect man (next to the Buddha), he was portrayed as being morally entitled to the throne as well as empowered to wage wars against other less perfect monarchs. Some scholars have even described premodern Thai statecraft as a space of several smaller tributary kingdoms united by one man’s charisma (Tambiah Reference Tambiah1976, 102; Sunait 1990; Prapod Reference Assavavirulhakarn2010, 18–19).
According to some sources, the well-being of a Buddhist kingdom depended on the barami of this single person, which was not static, but in danger of being eroded. Barami could be depleted, requiring the king to practice dhamma. If the king behaved, the kingdom was supposed to prosper. Those rulers who ignored dhamma brought disasters, draughts, floods, or fires to their subjects. Folklore from northern Thai kingdoms tells a story of a kingdom that sank overnight as a punishment for the behavior of an evil king (Chai-anan & Sombat Reference Samudavanija1980, 46–51).
One of the most important works of literature on barami is Trai Phum Phra Ruang, the “Three Worlds of King Ruang.” Composed by King Lithai in the fourteenth century as a reading on Buddhism for his mother, Trai Phum Phra Ruang is also a great work of political literature (Reynolds Reference Reynolds1976; Cholthira Reference Klud-U1974). The text describes vividly a cosmology consisting of many worlds of deities, men, demons, and other creatures covering four continents, and their people and fauna. It tells the story of the creation of the universe at the start of the last eon, drawing from many other important Buddhist texts.Footnote 11
The underlying message of the Trai Phum is clear: a sentient being’s fate is determined by its karma (Jackson Reference Jackson and Ling1993, 70–74). The book begins with a description of the lowest realm of hell, gradually working its way up through different realms of animals, ghosts, and demons. Lower realms are full of creatures of disgusting birth and lowly livelihood, feeding on mud and waste, and of ugly unsightly aspect. The later chapters deal with the realm of humans and gods of varying qualities. The lower heavens are full of worldly pleasures, while the higher realms enjoy more sublime ones. Within the present world, the three continents hold people of perfect appearance and longevity. They know no sadness. Their lands have food aplenty and no hardship will ever befall them. All this is because the residents of the three continents practice dhamma.Footnote 12
The Trai Phum describes the political system as dominated by kings who have accumulated barami over their past lives (Chontira 1974, 116). According to this view, they are entitled to their throne and prestige as well as loyalty from their subjects. Such kings speak in words that are always just and fair. They dispense with wealth without reservation and, as a result of their moral character, ensure that the kingdom’s wealth grows even wider. The kings are described as cakravartin (Pali: cakkavattin), ‘wheel turners’ who have the power to defeat all others and who guide their citizens and protect dhamma (Chai-anan & Sombat Reference Samudavanija1980, 61–67). Barami brings kings power and wisdom as well as a fair appearance, perfect for a ruler. Other members of society are born or assigned into their places, high and low, according to their karma too.
In the fifteenth century, the Kingdom of Ayutthaya implemented its own hierarchical scheme called the sakdina system, in order to regulate its workforce (Akin Reference Rabibadhana2017). All men and women, from a beggar to the viceroy, were assigned certain rankings, from 5 rai to 100,000 rai. All benefits and duties are conferred based on the ranking. The sakdina system created a social and political organization similar to the Trai Phum’s karma-based cosmology. On this sociopolitical pyramid, the king sits at the zenith as the most perfect man. Below him are courtiers, commoners, and other persons. As with the Trai Phum, men with higher barami were imagined to rule over those with lower barami.
These notions of barami came under immense pressure by the end of the nineteenth century. Newly arrived Christian missionaries challenged Buddhism, criticizing it as a mythical barbaric religion. Siamese aristocrats responded by redefining Buddhism (Thongchai Reference Winichakul2015; Jackson Reference Jackson and Ling1993, 43–47). They emphasized the ‘rational’ features of the Pali canon and tried to discredit elements such as miracles as later corruptions of an essentially logical religion. Trai Phum and jātakas were downgraded from the status of sacred texts to fables (Jory Reference Jackson2002).
These changes to Buddhism fit with the construction of the new Thai nation-state, which emphasized the Western concept of sovereignty. King Chulalongkorn was the first Thai king to claim this kind of sovereignty, which, unlike barami, was absolute, static, and, most importantly, inheritable by his son. Where ancient kingdoms were loosely constructed, consisting of greater and lesser kings along with dominant and tributary states, under the new political philosophy the king’s power was imagined to reach every corner of the new Thai “geo-body” without ever waning (Thongchai Reference Winichakul1994). Chulalongkorn relied less on barami and more on written legal codes.
One might assume that the era of barami-based Buddhist kingship was over in the nineteenth century. But is that the case? King Chulalongkorn was the first modern king, but he was also revered as a demi-god. The worshipping of Chulalongkorn suggests that the king was still viewed with high barami. Even those aristocrats who were pressured to undertake the reforms of modern Thai Buddhism might not have abandoned the barami concept entirely. For example, King Vajiravuth, Chulalongkorn’s son and successor, ordered a royal anthem called san-sern-phra-barami, which praises His Majesty’s barami. A Thai reference to a man of high power is still phu mi barami, meaning ‘one who has barami.’ When a man falls from his grace, some will say that he has depleted his barami, mod barami. Buddhism as a religious philosophy may have been rationalized and modernized, but Buddhism as a political ideology remained unchanged (Gray Reference Gray1986). Many Thais seem to adopt a rationalistic version of Buddhism for their personal life philosophy and guidance, while advocating for traditional barami-based sociopolitical hierarchy (Nidhi Reference Eowsriwong2012, 311–325). How could barami be preserved and popularized in the modern age?
8.3.2 Popularizing Barami
Seven hundred years are enough for belief in barami to seep into Thais’ deepest conscience. Few have heard of Trai Phum and fewer still read it. But for most Thais, men are not equal. As one Thai proverb goes, one can compete in a boat race, but one could not compete in bun (merit) and wasana (luck). The taboo of someone whose lifestyle is not compatible with his or her social status always draws criticism.
This kind of thinking is still prevalent among conservatives. As Thai politics turn more moralistic, conservative voices often chant the mantra that men are not equal. They justify the authoritarian regime by labelling ordinary people as stupid and not worthy of the right to self-governance (Apichat & Anusorn Reference Satitniramai and Unno2017, 97–116). Only good people can acquire an office of political power (Aim Reference Sinpeng and Chachavalpongpun2020, 151). Barami, I would argue, is still one of the most important sources of political authority in twenty-first-century Thailand.
Some might argue that, as evidenced by declining attendance at temples, along with a declining number of monks and temples (Channarong Reference Boonnoon2011), Thais are becoming less religious and therefore barami is not important. Yet, the majority of Thais learn about barami through contemporary and vernacular sources. For example, the story of Phra Malai is a popular narrative that also emphasizes the importance of karma (Igunma Reference Igunma2013). The story focuses on an arahant called Malai who visits heaven and hell. In hell, he documents the types of punishment related to a given action. A drinker is fed red-hot molten copper. An adulterer is forced to climb a Bombax tree with sharp iron thorns while being preyed on by crows. Those who insult an arahant would have mouths as narrow as a needle hole, and therefore, be forever hungry. Beliefs like these are deeply entangled in the Thai conscience, even among those who do not regularly attend temples. Most Thais could probably recite an evil deed and its matching punishment even without having read the tale of Phra Malai. Some monks and nuns even offer a service where disciples are told which type of bad behavior results in which type of mishap. By matching certain types of merit to a specific blessing, these monks and nuns recommend merit-making according to one’s goal. It is common to find a book or a TV show that discusses a participant’s past lives and the consequence of his or her karma.Footnote 13
Several jātakas were turned into plays, and later, literature of prose and verse, making them popular moral tales as much as Buddhist stories. Rathasenajātaka became Phra Rot-Meri, the story of Prince Rathasena’s adventure into the land of a monster queen, Meri, ending in romantic tragedy (Baker & Pasuk 2019, 57). Suthanajātaka was adapted into Suthana-Manohara, another adventure of Prince Suthana in pursuit of a mythical half-woman, half-bird princess, Manohara (Baker & Pasuk 2019, 1). Suvannasankhajātaka is retold as the story of Sank Tong, a prince who was born with a golden conch (Baker & Pasuk 2019, 27). Samuddaghosajātaka is Samuddhaghosa, another adventure of Prince Samuddhaghosa who was kidnapped by a playful god and introduced, for a night, to a princess (Baker & Pasuk 2019, 75). All these stories depict a protagonist of a noble class, with beautiful aspect and exceptional courage. They were given a difficult task but received aid from gods and goddesses who believed that a man of high merit deserved better treatment and should not suffer. These stories are still being made into dances, cartoons, and TV series to this day.
The best-known of the jātaka stories is that of the Buddha’s penultimate rebirth before his final incarnation, in which he is born as a king named Vessantara. The story of Prince Vessantara emphasizes the importance of generosity or giving, dāna. Vessantara inspires the exceedingly popular performance of Mahachat, “the Great Birth,” where monks recite the entire beautiful prose of Prince Vessantara’s adventure within a single day. The importance of this story and this celebration have been analyzed by Patrick Jory, who argues that it forms the foundation of Thailand’s theory of divine kingship (2016).
Even King Bhumibol was involved in popularizing jātaka stories, rewriting Mahajanakajātaka to teach the virtue of perseverance (Bhumibol Reference Adulyadej1996). The story tells of Prince Mahachanok, who had to swim in the ocean for seven days straight before the Goddess Mekhala rescued him. It became a big hit in Thailand, and a best-selling book. Later, it was simplified and illustrated by a famous cartoonist, Chai Ratchawat (1999). It was also adapted into an opera by Somtow Sucharitkul.Footnote 14 A new breed of mango was grown to honor the story in which the prince learned to resurrect a delicious mango tree which had been ravished by ignorant greedy men: the king named it “Mahajanaka mango.”
These stories of barami and bunna are included in the national educational curriculum. For most Thais, the primary contact point with Buddhism is in public education, of which the first twelve years are compulsory, and where Buddhism-inspired stories constitute a significant part of the reading list. These readings reflect Buddhist thinking about karma and its effects. It does not include Trai Phum, but it does include the tale of Phra Malai and the Vessantara Jātaka.
Moreover, notions of barami have been a big part of the modern idealizations of kingship in Thailand. King Bhumibol himself is said to be the living example of the perfect man filled with barami. In the last thirty years of his reign, Thailand witnessed the rise of hyper-royalism, an excessive worship of the monarch as the morally absolute ruler (Thongchai Reference Winichakul2016). Through this process, Bhumibol has been elevated from a hard-working developer of the nation into a semi-divine figure. Some prominent royalists, such as a public scholar, Kukrit Pramoj, told accounts of King Bhumibol’s barami, for example, that His Majesty seemed to be able to command animals and weather patterns. Other stories tell that when the king was presiding over a ceremony, his presence stopped the drizzling rain or, in the case of a hot sunny day, brought light showers, equivalent to spraying holy water. Bhumibol was revered for possessing an innate spiritual power. These accounts are openly published in newspapers (Siamrath Reference Siamrath2016).
During the peak of the Cold War, when Thailand was struggling against a communist insurgency, the king’s barami became the basis to produce a powerful amulet, “Phra Somdej Chitrlada,” named after the king’s palace. The amulet needed no further ceremony of sacralization because the presence of the king was deemed sufficient to ensure it. It was distributed to security personnel, soldiers, border-patrol police, local militias, and other government employees who were fighting against communism (Art & Culture Magazine 2021; Kom Chad Luek Reference Luek2012). Many military personnel confirmed that the sacred amulet saved their lives. Several senior monks confirmed that Bhumibol had great interest and knowledge in dhamma and had even attained various levels of enlightenment – implying that he was one genuine bodhisattva (MGR Online 2016). At his funeral, Thais were amazed by the news that a flock of white birds were circling his crematorium as a sign of barami (Matichon Reference Matichon2016). All of these accounts, some well documented, others anecdotal, provide the public with an image of a mythical king.
8.3.3 Barami and “Dhammacracy”
The Buddhist notion of barami evolved to justify absolute monarchy in premodern times, but can it become part of Thailand’s democracy today? Unfortunately, recent developments suggest that there is a problem with its use in a modern democratic system. The idea of barami suggests that only a meritorious and morally upright individual will rise to power. In other words, it allows only khon dee (good persons) into public office while excluding khon mai dee (bad persons). The core idea of democracy, by contrast, is basically to give the most popular person power, regardless of his or her personal moral quality. However, this risk is compensated with the limited duration of one’s political office. When Buddhist intelligentsia compares Buddhism and democracy, the conclusion is always that Western-imported ideology is inferior to the finer, and more nuanced, traditional one.
Thailand has come too far to return to absolute monarchy, which was abolished in 1932. The best the conservatives can offer is to forge a new ideology that suppresses democracy while justifying an undemocratic regime. The result of this process is “dhammacracy,” the governance of dhamma.Footnote 15
The famous monk Buddhadasa is regarded as the leading scholar of modernist Buddhism in Thailand. He advocates dhammic socialist dictatorship against liberal democracy (Buddhadasa 1975; Jackson Reference Jackson2003, 239–242). Buddhadasa imagines a Platonic-style philosopher-king whose objective and behavior are constrained by his own inner dhammic morality. Thus, his goal could only be to serve the whole and never be corrupt. According to Buddhadasa, dhammic socialist dictatorships are more efficient than capitalist democracies, which are too individualistic. In his estimation, MPs in a democratic government will waste precious time arguing, not for the public interest, but for their own wealth.
This view is supported by other scholars of the conservative spectrum (Pinyapan Reference Potjanalawan2019, 329–330). Chamlong Srimuang, the leader of the People’s Alliance for Democracy (PAD), which toppled Thaksin and incited a coup, was himself an admirer of the righteous dictatorial style of governance (Nelson Reference Nelson and Askew2010). The remark is undoubtedly controversial, leading to criticism that Buddhadasa’s ideas were used to support authoritarianism (Wanpat Reference Youngmevittaya2017; Gabaude Reference Gabaude and Sivaraksa1990; Jackson Reference Jackson2003, 243–244).
Perhaps, the most important articulation of barami-based political authority came from King Bhumibol, himself the embodiment of a hierarchical moral order. His 1969 speech delivered at the Vajiravuth boy scout camp in Chon buri succinctly encapsulated the essence of what the ideal Buddhist constitutionalism should be like. In the speech, the king admitted that there were good and bad people. While bad people could not always be converted, Thais could exclude those people from politics while supporting the rule of good people.Footnote 16 The speech was hugely popular, and it has become a mandate for the conservatives, appalled by the democratic idea that an evil yet popular man could win office. It is often recited to justify antidemocratic protests and coups. Bhumibol was himself a proof of his own theory when he intervened to settle political disputes.
The concepts of karma and barami form important building blocks of “dhammacracy,” the ultimate goal of which is to impose dhamma over any form of political regime (Jackson Reference Jackson and Ling1993, 77–80). In its application, “dhammacracy” forms the foundation of Thai-style democracy but can simply be a euphemism for authoritarianism (Hewison & Kengkij 2010; Connors Reference Connors2008). The king’s barami radiates to those who have close proximity to him: politically, his barami is extended to army generals, who are portrayed as guardians of the throne and of the nation (Chambers & Napisa Reference Chambers and Waitoolkiat2016, 425). Thai-style democracy thus places the king at the top of the political system. Below are his loyal senior bureaucrats, especially army generals, above corrupt and selfish civilian politicians. The lowest ranking is that of the populace, who are deemed to always vote for the wrong politicians. Thai-style democracy therefore permits military coup intervention in the name of His Majesty (Thongchai Reference Winichakul2018). The system of Thai-style democracy was formed during the military dictatorship in the Cold War period, but it began to crumble with the political and economic liberalization of the 1990s. That was when the majority demanded the 1997 political reform.
With the benefit of hindsight, the efforts of Thai-style democracy and the barami-based political authority can be detected even in the 1997 Constitution, questioning its name of the People’s Constitution. The 1997 Charter is called the People’s Constitution due to its empowerment of the people through a very progressive list of rights and liberties, and because it was produced as a result of a popular movement. But the initial agenda resulted in the introduction of the new judicial and independent watchdog bodies (Connors Reference Connors and McCargo2002).
The judicialization of politics often makes authoritarians’ control of politics appear to conform more to the international norm of democracy than an outright military junta (Landau & Dixon Reference Landau and Dixon2020, 1335–1338). Yet, in Thailand these judicial and independent agencies replaced the military as the new actor of high barami. Their goal was, in this sense, also to impose control over elected politicians and to prevent a political crisis. They are elite not only because they enjoy superior power, but also because these offices are limited to a few people of extraordinary qualification. The discrepancy is obvious in comparison to qualification for MP candidates. While any person aged twenty-five and above is eligible to run for parliament, a candidate for the watchdog agencies must be forty-five years old and have acquired higher education and a certain bureaucratic rank – for example, director-general of a government department, chief of a court, or professor – and display exemplary behavior and morality. All of these could arguably be considered modern signifiers of one’s barami. It should be no surprise therefore that Borwornsak Uwanno, the constitutional law scholar and key advocate of the 1997 Constitution drafting, later advocated “dhammacracy” (Reference Adulyadej2016).
Independent agencies are not a new feature in Thai public administration, the Bank of Thailand being one fine example of an independent body under the cabinet’s arm-length control. The Court of Justice has undoubtedly been independent from the political branches since 1901. Nevertheless, these new judicial and watchdog agencies are particularly significant because they are more independent than ever, with the constitution guaranteeing virtually no meaningful political oversight. Moreover, unlike the Court of Justice, these agencies are not bound by any tradition that serves as an implicit constraint. They are basically the fourth, fifth, sixth, and many other branches of government. The constitutions recognize them as separate from the conventional trinity of powers. There is therefore no guidance or constitutional convention to provide advice on how the legislative, executive, or judiciary should scrutinize them. The independence of these agencies, together with their expansive jurisdiction, may be necessary for scrutinizing politicians. But they are also a tangible display of barami, according to which a meritorious elite is set above the political actors. In fact, it might be argued that candidates are selected not because of their unique professional qualifications, but because of their moral quality. The Constitutional Court judges are the best example of this: no judge serving on that body can be described as an expert in public law (Somchai Reference Preechasinlapakul2018); and the better-known ones have a reputation for notable ascetic style, such as Jaran Pakdithanakul, whose interest in Buddhism is well known.
Why did the constitution drafters not install mechanisms to hold these elite bodies accountable? In a way, the political ideals of the Trai Phum have become self-fulfilling prophecies in modern Thailand: barami is considered to enhance political authority and so political authority comes to stand in for barami. More often than not, Thais accept that political authority indicates barami and that barami entails morality. All of this upends the Western concept of power and the famous maxim that power tends to corrupt. In Thailand, absolute power can never be corrupt because absolute power is granted only to a person of barami, which in itself guarantees righteousness.
8.4 Barami versus Vox Populi
The first sign of trouble for Thaksin has been associated with his remark on June 29, 2006, that phu mi barami nok ratthathammanoon, “the one with barami outside the constitution, was manipulating the constitutional politics.” (Chai-anan 2006). In a way, the remark also encapsulated well the tension between barami and Thai constitutional politics. Thaksin was becoming so popular that he had the potential to overshadow the country’s already incumbent perfect man, the king (Jory Reference Jory2016, 184–88). In a view based on Trai Phum, such a dislocation could not stand, as it threatened to upend an entire scheme of moral authority and karmic merit that, even if not explicit, upheld the legitimacy of Thailand’s system of social and political inequality. As Thaksin sought to eclipse King Bhumibol, the king’s close aide and the head of privy council, General Prem Tinnasulanonda, called for the military to stage a coup and restore the proper order of things, placing the king (the epitome of barami) back in the center of power.
The military alone could not carry out a coup successfully. It was the king’s criticism of Thaksin and the Constitutional Court – and its group of khon dee – that invalidated the 2006 election and justified Thaksin’s ousting (Ukrist 2008; Khemthong 2016, 79–177). The event symbolizes the mixture of Buddhism and constitutional politics in post-2006 Thailand: the rise of unelected elite agencies, legitimated by notions of barami, and the decline of popular ideals of democracy.
But how long can barami suppress the voice of the people? The judiciary and watchdog agencies are under massive pressure: every time they punish democratically elected politicians, more people question whether they are legitimized to do so. Their supposedly high morality fails to prevent them from exercising power arbitrarily. Barami as a source of political legitimacy is today sounding somewhat less convincing to angry ears.
Thailand’s constitutional order, as defined and redefined constantly by courts, scholars, and kings from the late nineteenth century until present, is a bricolage of constitutional monarchy and Buddhist kingship (Mérieau Reference Eugénie2021b). In the mid-nineteenth century, doctrines of law and kingship still relied mostly on concepts derived from Hinduism and Buddhism. These doctrines were expressed in religious texts, treatises, and tales as well as in the Phrathammasat portion of the Three Seals Code, dating back from the Chakri Reformation of the early nineteenth century. From the late nineteenth century, in its quest to become “civilized” (siwilai) and to escape colonization, Siam engaged in a process of legal “modernisation” (Thongchai Reference Winichakul2000). Thai modern legal categories, concepts, rules, and doctrines were creatively invented, based on borrowings from Western countries (from both common law and civil law traditions), then hybridised with “re-invented” indigenous categories, often rooted in Buddhism.
In particular, Thai scholars and jurists indigenised European legal categories by creating neologisms based on Pali, the sacred language of Theravāda Buddhist scriptures, and by fusing European doctrines with similar Buddhist narratives. Besides the well-known history of the lèse-majesté law (Streckfuss Reference Streckfuss2011, Mérieau Reference Eugénie2021a), one of these foundational “mergers” includes the hybridisation of the European, monarchist, myth of the royal constitutional “octroy” (the king as the source of law, who benevolently grants the Constitution to his subjects) with the Thai Hindu-Buddhist myth of the dhammarāja king (the king is the upholder of the dharma/natural law, who turns the wheel of the law). As a result, the king became, in Thai doctrine, both the granter and “turner” of the country’s foundational law, the source of the Thai constitutional order. This ideal was enshrined in the preambles of the successive Thai constitutions from 1932 until this day, embodied in state institutions and reenacted in various state ceremonies, themselves “bricolaged” using Buddhist and Western symbolism, such as the ceremony of royal “constitution-granting.” The narrative of the king as the source of the Constitution is one of the key aspects of Thailand’s “Buddhist constitutionalism” (Mérieau Reference Eugénie2018).
The current Constitution, the 2017 Constitution, was “granted” (de jure: promulgated) by King Vajiralongkorn on 6 April 2017 – the date of the anniversary of the Chakri dynasty’s foundation. The ritual depicted the king, seated on a golden throne, signing the book of the Constitution in three copies to a kneeling then-leader of the military junta, General Prayuth Chan-ocha (now “elected” Prime Minister). The Constitution, in the form of a folded golden book called samutthai, was handed back and forth between the king and the leader of the military junta on a golden tray used to pass sacred objects and/or to pass objects from/to sacred people, called a phanwenfa. The ceremony presented the Constitution as rooted in an ancient tradition of Thai law drawing on Hindu and Buddhist ideas and images. Echoing the tripartite nature of the Buddhist canon (Pali: Tipiṭaka, literally three baskets), the samutthai was kept in three thrice-folded copies. The golden tray symbolised the royal gift of a sacred constitution: the king was here performing the ritual of “constitutional octroy” according to which the Constitution is a sacred grant of the king onto his people.
Yet, the imagery was a bricolage of the European idea of law as a gift from the king with the Hindu-Buddhist idea of the king as the upholder and turner of the sacred law, the dhamma. In this construction, the king is not only the source of the positive legal order, but also the upholder of the natural (cosmic) legal order. This doctrinal bricolage, as performed in the “constitution-granting” ritual, undoubtedly aims to consolidate the king’s authority and legitimacy. Yet, it is not without its challenges, as a bitter competition for legal supremacy plays out between the king and the Constitution (or rather, between their respective defenders), a conflict which still remains at the heart of the current Thai political crisis. This chapter will trace this process of doctrinal bricolage from the nineteenth century until present and reflect on some of its implications.
9.2 The King-dhammarāja as Upholder of the ‘Ancient Constitution’ in the Phrathammasat of the Three Seals Code (1805)
In the mid-nineteenth century, the laws governing the Siamese monarchy were part of a wider body of legal prescriptions assembled in a code called the “Three Seals Code” (kotmai tra sam duang). The Three Seals Code had been compiled on the order of Phraputtayotfachulalok (r. 1782–1809), later known as Rama I, the founder of the Chakri dynasty, by a commission of royal scribes, pundits, and brāhmaṇas (Lingat 1929; Wales Reference Wales1934). It was named after the three seals of the north (mythological lion), south (mythological elephant), and centre (crystal lotus) corresponding respectively to the Ministry of the Interior, the Ministry of Defence, and the Ministry of Finance, a testimony to the territorial rather than functional organisation of the ancient administration of Siam. Three official copies of the Code were kept: one was deposited at the Royal Library, another in the king’s apartment, and a third in the Court of Justice.
9.2.1 The King According to the Phrathammasat
The Three Seals Code contained a reconstructed version of the old laws of Siam, dating back to the Ayutthaya, Thonburi, and early Bangkok periods. It had three components: the Phrathammasat exposing the various sources of disputes (mula-khadi) as derived, it claimed, from the Hindu Code of Manu; the Phrarachasat detailing the various “ramifications of disputes” – namely, laws/rulings claimed to be made by kings based on the principles of the Phrathammasat; and other pieces of royal legislation not claimed to be derived from the Phrathammasat, called the Phrarachanitisat, which were concerned mostly with administrative matters, such as key royal edicts on legal procedures and civil and military administration, but also to some extent with constitutional matters, such as the palace Law (kot montien ban) regulating the exercise of royal power.
The Phrathammasat opens with a mention of the Three Jewels: the Buddha, “discoverer of the Four Noble Truths,” the dhamma, or “nine transcendental practices, to which must be added knowledge,” and finally the sangha, “the noble community of the eight perfect disciples of the monk community.” The text glorifies the ideal of kingship as practiced by past kings as dhammarāja or Buddhist righteous rulers, who governed according to the Ten Virtues of a Righteous King (totsapit-rajadharma) (Saichon Reference Sattayanurak2003; Thianpanya Reference Paphatsaun2008). In its normative components, the Phrathammasat also states that the king ought to subject his rule to the “Ten Virtues of a Righteous King” as well as the thammasat at all times. Therefore, according to the Phrathammasat, the Siamese king ought not to have legislative power, as the king was only to have adjudicating powers: namely, his role was to apply the thammasat, not to modify it (Lingat Reference Lingat1941, 26–31).Footnote 1 The Phrathammasat also established kings as bodhisattva, or Buddha-to-be, as cakravartin, or universal sovereign rulers, and finally as mahāsammata or great elected kings.
9.2.2 The King-Mahāsammata Doctrine
Besides being a cakravartin and a bodhisattva, the dhammarāja is also referred to in the Phrathammasat as a mahāsammata. The Phrathammasat opens with the following tale of origin: “A Lord bodhisattva was born as a great man at the start of this era. After a time, disputes arose, and nobody could be found to control them. Everyone came together in a meeting and appointed this great man to be the ruler with the name King Mahāsammata, equipped with the seven gem attributes [referring to the cakravartin]Footnote 2, and accepted by all four continents.” (translation in Baker and Pongpaichit Reference Baker, Phongpaichit, Harding and Pongsapan2016, 106). In the Phrathammasat, the mahāsammata king is elected by popular acclamation for his qualities, as the “most capable” person to end chaos through the implementation of the dhamma. The mahāsammata theory thus posits a contractual basis of kingship, but without discarding the religious origin of kingship.Footnote 3 Indeed, the Phrathammasat states that the king was chosen by the people based on his previously accumulated merit, which allowed him to claim sovereignty and rule over the people:
All the branch matters described here [were created by] past kings [who] had miraculous wisdom and accumulated merit (barami) to be rulers over the populace, to have fought with enemies, and to be powerful under the splendid white umbrella, upholding moral truth, honesty, good conduct with wisdom, insight and reason, with the intention to make the city and territory within the realm prosper in happiness and joy.
According to the Phrathammasat, kingship is acquired through the principle of karmic retribution: the king reigns “thanks to the power of his merits” and this is the basis of his “popular” election. As Stanley Tambiah puts it:
[The] elective theory of kingship is counterbalanced by asserting at the same time that Mahāsammata was a virtuous man, an embodiment of dharma and destined to become a Buddha; and that it was as his minister that the sage Manu discovered the perfect law. Thus we see how a contractual theory of government is yoked to the charismatic properties of kingship, thereby constantly compelling the pragmatics of politics to measure itself against an enduring standard.
9.2.3 Secularisation of the King-dhammarāja Doctrine
The beliefs or religious-legal doctrines of kingship listed above, as written in the Phrathammasat, have their origins in the Pali Canon, most notably in the Aggañña Sutta and the jātaka or tales of the past lives of Buddha, as well as in various treatises and epics, most notably the Three Worlds, a book about heavens and hells that contains the first systematic description of the world according to the Buddhist cosmology, and the Ramakien, a Siamese version of the Ramayana. These were rewritten in the early nineteenth century, prior to the launch of the legal codification process, on the order of Rama I as part of his project of the restoration of royal authority relying on Buddhism (Wenk Reference Wenk1968; Wyatt Reference Wyatt, Wyatt and Woodside1982).
Among the jātaka tales, Rama I placed particular emphasis on the tale of the very last incarnation of the Buddha as Prince Vessantara (Wales Reference Wales1931, 31; Jory Reference Jory2016). In the tale, the prince gives away everything he possesses, including his wife and children, to attain enlightenment, and this is precisely how he succeeds in becoming the Buddha. In his version of the Three Worlds, Rama I placed particular emphasis on the story of the King-dhammarāja (cakravartin-bodhisattva), which he put at the very centre of the story.Footnote 4 Lastly, his version of the Ramakien tells the story of a prince, Phra Ram, said to exhibit the practice of the “Ten Virtues of a Righteous King.” He is also of divine nature as an avatar of the god Vishnu (Phra Narai in Thai). Thanks to his royal virtues, his fights with demons to save his abducted wife Sita are ultimately victorious. These three stories, as rewritten in the early nineteenth century on the order of Rama I, included powerful allegories of the Siamese concept of royalty, which underscored the ideals of Buddhist royal virtue mentioned above. In the end, both the Three Worlds and the Tipiṭaka were referred to in the preface to the Phrathammasat (Baker and Pasuk Reference Baker, Phongpaichit, Harding and Pongsapan2016, 104), but the Ramakien was not.
From the mid-nineteenth century, the tale of Vessantara, the Three Worlds, and the Ramakien began to be progressively reduced to the status of non-historical, non-scientific “tales,” while the Hindu gods were downgraded to make way for the worship owed to the Buddha. The Siamese kings were nonetheless considered sommuthithep or “supposed gods,” avatars of Vishnu or Shiva, an idea that was reenacted in state ceremonies (Riggs Reference Riggs1966, 99). Yet, the entire scientific and historical character of Buddhist literature was discarded. The jātakas and stories of the life of the Buddhas, which until then had been considered historical facts, as well as the Three Worlds, which until then had been considered somewhat of a treatise on geography (Thongchai Reference Winichakul1994) were reassessed and rebranded as “folk tales”: they became part of the Western category of literature. The theories of the bodhisattva and cakravartin as well as the mahāsammata were likewise dismissed as old superstitions (Jory Reference Jory2016, 21).
The general movement towards rationalisation and secularisation that had been born out of the encounter with the West was bringing about new challenges to the monarchy. The monarch could no longer derive his authority simply from a supposed lineage linking him to the Buddha, nor from his status as Buddha-to-be or universal sovereign. Instead, the monarchy would have to base its legitimacy on the dynastic principle pertaining to a specific territory and population. The mahāsammata doctrine of the elected king would have to be secularised and “legalised” to make it acceptable by Western standards. At the same time, based on European understandings of law and kingship, new tools and doctrines of sovereignty could be devised to enable Siamese kings to acquire effective legislative power and then use the law to consolidate their authority. Among these tools, the principle of a modern constitution soon appealed to Siamese kings.
9.3 The King-dhammarāja in the 1932 “Granted” Constitution
From the end of the nineteenth century to the first decades of the twentieth century, successive Thai kings Chulalongkorn (r. 1868–1910), Vajiravudh (r. 1910–25) and Prajadhipok (r. 1925–35) engaged in various constitution-drafting projects. In order to establish absolutism, King Chulalongkorn had a Bonapartist Constitution (but without a parliament) drafted by an advisor in 1889.Footnote 5 His successors, King Vajiravudh and King Prajadhipok, likewise engaged in constitution-drafting experiments, in 1918,Footnote 6 1926,Footnote 7 and 1932,Footnote 8 drawing from various models derived from the unwritten British Constitution, but all nonetheless articulated around the project of securing royal sovereignty.
These constitutional drafts all attempted to consolidate royal authority by establishing the king as the source of the Constitution and increasing his legislative powers, drawing on the nineteenth-century European model of so-called limited monarchy, especially in its Bonapartist version, as well as on the newly imported tenets of legal positivism, which vested legal authority in the dicta of sovereigns rather than cosmic principles. In particular, kings and their legal advisors looked to the doctrine of “granted constitutionalism,” which established the king as the sovereign source of the Constitution, a modern construct from continental European monarchies, which could easily be hybridised with traditional theories of Buddhist kingship.
9.3.1 The Bricolage of the Word “Constitution” (“Rattathammanun”)
These endeavours, however, were hijacked by the 1932 Revolution, which abolished the absolute monarchy in Siam. In June 1932, the People’s Party, under the leadership of French-educated jurist Pridi Banomyong, imposed a constitution on King Prajadhipok. As the concept of “constitution” was imported, Pridi and his group needed to create a Thai term for it. To translate the foreign word “constitution,” they could either build a secularised term, or a term rooted in the Buddhist idea of law, dhamma, thamma in Thai. The People’s Party chose to rely on terms found in the Three Seals Code and called its first constitution the “Fundamental Rule of Procedure for the Administration of Siam” (phrarachabanyat thammanun kan pokkrong phaendin). Phrarachabanyat referred at the time to royal legislation, while thammanun referred to dhamma: in the Three Seals Code, the title containing the cosmic law discovered by Manu was called laksana phrathammanun. Finally, phaendin was the traditional term for territory, which was strongly associated with traditional conceptions of kingship. The term was thus entirely rooted in Thai traditional concepts of law and kingship.
The term however did not survive long. An influential prince who was sympathetic to the revolution, Oxford-educated Wan Waithayakon, proposed a new word: rattathammanun, based on a new, secularist, Western-oriented word rat for state and on the traditional, Buddhist-derived word thammanun. To him, a constitution was “sacred” (saksith) and the word used to refer to it should denote this sacredness. At the same time, a constitution was also a modern construct based on Western political concepts, such as the idea of a nation-state. In accordance with Prince Wan’s proposal, the following Constitution, adopted in December of the same year, was called rattathammanun, mixing Buddhist and Western conceptions of law and kingship.
9.3.2 Merging the King-dhammarāja Doctrine and Doctrine of “Granted Constitutionalism”
The preamble of the December 1932 Constitution enshrined Hindu-Buddhist doctrines of kingship. It stated that the Constitution, on the one hand, had been “granted” (phrarachathan) by the king and, on the other hand, bestowed upon the king the duty “to preserve the country eternally”. The preamble delved into the “150 years of absolute monarchy under the principle of the Ten Virtues of a Righteous King.” The king’s full name with titles, added to the preamble of the Constitution, occupied the whole of the first page of the Constitution in thirteen lines. He bore the titles of bodhisattva, mahāsammata, Great Elect, cakravartin, divine angel, reincarnation of Vishnu, and, last but not least, dhammarāja. In the first title of the Constitution, dealing with kingship, the traditional conceptions of kingship and the law were twisted and secularised: as the supreme commander of the army, the king was associated with the traditional function of cakravartin, as the patron of Buddhism, with that of bodhisattva, and as the sovereign exercising legislative, executive, and judicial power in the name of the people, with the dhammarāja–mahāsammata.
The December 1932 Constitution stated that sovereignty did not belong to Siamese subjects but “emanate[d] from the people,” being “exercised by the king in accordance with the dispositions of this Constitution” (Article 2). Sovereignty was referred to by a new term, amnatipatai, formed from a Pali suffix. According to Phraya Sriwisanwacha, one of the key drafters of the December Constitution:
When we say that sovereignty comes from the people, it means that the king ascends the throne upon invitation by the people, what is in conformity with our old precept which stated in the name of the king that he had been elected.
Likewise, Prime Minister Phraya Manopakorn Nithithada explained that this article on sovereignty and the doctrine it relied on in fact derived from the mahāsammata doctrine:
In reality, the first part of the article [on sovereignty] is simply a reaffirmation of our ancient traditions (phrapheni boran). Indeed, if we open ancient books, it is said in the very name of the king that he has been elected; in the coronation ceremony, there are brahmins and high civil servants who give the crown jewels, representing the fact that the king ascends the throne at the invitation of the people and not by Heaven’s Will, what some foreign countries cannot understand.
In the parliamentary debates of 1932, Phraya Manopakorn Nithithada also explained that the Constitution was “granted” by the king, therefore the king always retained sovereignty, as he pre-existed the Constitution. But, because he was “elected,” he did so “in the name of the people.” This rationale justified why the Constitution did not mandate that the king swear an oath of allegiance to uphold it. As a member of the Constitution-drafting committee explained: “We know well that the king must swear an oath before the representatives of the Theravāda gods, as well as Buddha, etc. Consequently, [the text] can remain silent [on the issue of the royal oath to the Constitution]” (Noranit Reference Settabutr2009, 48).
The result is that, in the Siamese constitutional imaginary of that time, the king was accountable to Theravāda gods and dhamma, but not to the Constitution he “gave”; he must uphold dhamma but does not need to submit himself to “his own” Constitution. Therefore, the 1932 Constitution, which by all accounts resembled a Western parliamentary monarchy constitution, was nevertheless very much influenced by the king-dhammarāja doctrine. The king remained, albeit in a modernised and more symbolic form, the law-giver or, rather, the constitution-giver.
9.3.3 The Cult of the Sacred Constitution (as a Royal Gift)
It must be noted that during this time, religious discourse increasingly permeated the way the Constitution was understood: members of the People’s Party framed the Constitution as “sacred” (rattathammanun saksith) (Nattapol Reference Chaiching2013, 18–19; Suthachai Reference Yimprasert2008, 33–34; Bandit Reference Chanrochanakit2007, 13) precisely because it had been a “king’s octroy” (rattathammanun phrarachathan). In 1933, as a royalist counterrevolution was looming large, revolutionaries including Pridi Banomyong used the idea of the “royally granted constitution” to mobilise people throughout the country in its defence, despite the fact that they had fought for the recognition of parliamentary sovereignty at the expense of royal sovereignty. Symbolically, constitutional supremacy was replacing royal supremacy, even while drawing its legitimacy from the monarchy and borrowing its modes of legitimation, many of which had their roots in Buddhism. Eventually, the royalist counterrevolution was defeated, and its leaders went into exile.
From 1934, as a way to consolidate the revolution, the government, led by Pridi as minister of the interior, continued to work hard to shift the locus of sacredness from the monarchy to the Constitution. The Constitution became the object of a truly official cult. An “Association for the Constitution” (samakhom khana rattathammanoon), with branches all over the country, organised celebrations and marches in the honour of the Constitution, mimicking past ceremonies for the king (Puli Reference Fuwongcharoen2018). The Constitution was worshipped as a “royal gift,” angering then-King Prajadhipok. In his last words before abdication, as he hopelessly pleaded with the government to get back some of his old, customary royal prerogatives, he wrote to the members of the People’s Party: “The Constitution should not be sacred, it should be revisable. It is not right to venerate it with scented candles as you do, venerating the Constitution is a joke!” (Mérieau Reference Eugénie2021, 99). Following Prajadhipok’s abdication in March 1935, the People’s Party aimed to fill the void left by the disappearance of the figure of the king by relying even more on the cult of the Constitution. Firmly in power, and without a king, the People’s Party commissioned two monuments to honour the new cult of the Constitution.
The first edifice, called “Safeguarding the Constitution” was built in 1936 to commemorate the victory of the People’s Party over the attempted royalist counterrevolution led by Prince Boworadet in 1933. It is the burial site of the remains of those who “fought and died for the Constitution” (Thanavi 2018, 235). A second monument, the “Democracy Monument,” was commissioned in 1939 to commemorate the 1932 abolition of the absolute monarchy. It portrays Thai democracy as being composed of five elements: the four branches of the Thai security forces (Army, Navy, Air Force, and Thai police) at the periphery, and the Constitution, at its core. The Constitution is represented in a Buddhist-scripture-like longitudinal book made of golden palm leaves, the samutthai, placed on top of two royal golden trays used for sacred objects – the phanwenfa – in effect, displaying the Constitution as a sacred object. The security forces are represented by three erect, obelisk-like, 24-metre-high wings surrounding and overlooking the Constitution. The monument embodies the following narrative: that democracy takes the form of a sacred “granted” Constitution, whose guardian is the military (Nidhi Reference Eoseewong2004, 106). In both these monuments, it is the Constitution, rather than the king, that becomes the sacred centre of the nation: the Democracy Monument also marks Thailand’s “kilometre zero” – the central location from which all distances are measured (Thanavi Reference Chotpradit2016). As such, it is the Constitution that becomes the rallying symbol of the nation.
9.4 The King-dhammarāja in Contemporary Constitutional Doctrine
Following King Prajadhipok’s abdication in 1935, his nephew, Ananda Mahidol, was proclaimed king by the Assembly. As he was then a young student in Switzerland, a council of regents was appointed, giving the People’s Party free rein to design Thai political institutions and eradicate any traces of royal sovereignty. From Ananda’s return to the kingdom in 1946 onwards, the monarchy started to reclaim Buddhism at the expense of the People’s Party and reaffirm its role as dhammarāja-source of the Constitution.
9.4.1 Duties of a King: Performing Constitution-Granting Ceremonies
In 1946, King Ananda Mahidol agreed to return to the kingdom at the request of then-prime minister Pridi Banomyong in order to promulgate the 1946 Constitution: for Pridi, it was important to have the king ritually re-enact the myth of the “royal octroy” in order to make the 1946 Constitution as “sacred” as its predecessor, the December 1932 Constitution. The ceremony was grandiose and seemed to mark the reconciliation between the monarchy and the People’s Party. However, a few days later, King Ananda died from a bullet wound in the head in his palace bedchamber. Amidst the state of general shock and confusion, his younger brother, Bhumibol Adulyadej was named king as Rama IX. He was crowned in May 1950 in a traditional Hindu-Buddhist ceremony in which he made clear that he was mobilising Buddhist narratives on kingship to establish his authority as a dhammarāja. He pronounced the following, very short Accession Speech: “I shall reign by dharma, for the benefit and happiness of all the Thai people.”
The return of Bhumibol to the kingdom coincided with the rise of military dictatorship. In 1957, US-backed General Sarit Thanarat seized power in a coup, with the support of the king. General Sarit had nothing but contempt for the constitutional project, which he considered alien to Thai culture. Yet he appointed a constitution-drafting assembly, which doubled as acting legislative assembly, and whose work continued until after his death in 1963. In 1968, the Assembly had finally a complete text: it was promulgated in great pomp by King Bhumibol in a ceremony of “royal octroy” (Darling Reference Darling1977, 117). The king, seated on his throne, signed the three copies of the Constitution on a phanwenfa tray, given to his people. The ceremony was televised and photographed, with copies distributed all over the kingdom for people to worship. Bhumibol had presided over his first “constitution-granting ceremony,” just as Prajadhipok had done in 1932 and Ananda in 1946. Even though the 1968 Constitution did not last long – it would be abolished by a coup in 1971 – this ceremony marked a turning point: from this moment, King Bhumibol would increasingly act as a modern dhammarāja, or at least his actions would increasingly be interpreted as such by the legal profession. The concept of dhammarāja would invite itself back into law handbooks, articles, and essays.
Bhumibol had a first occasion to project an image of true dhammarāja in 1973. That year, students demanded that the military, which had come to power in the 1971 coup, resign and let them draft a new, democratic constitution. On 14 October 1973, they organised mass protests all over Bangkok. The king offered shelter and protection in his palace to the students who were fleeing the police. These moments were photographed, and the photographs distributed throughout the kingdom. Thanks to the king’s intervention, the protests were successful: the military government resigned, and Bhumibol “granted” the students a prime minister of his own choice but to their liking, Sanya Dharmasakti, the rector of Thammasat University. Rama IX also proposed the convening of a “National Convention” of nearly 2,500 members who would be tasked with the selection of new members of the parliament. He then dissolved the Assembly and directly appointed the members of the National Convention through a Royal Command. The National Convention was headed by Prince Wan Waithayakorn, the author of the Buddhist-inspired Thai neologism for “Constitution.” The National Convention selected the members of the new parliament in December 1973. Finally, a new constitution-drafting committee was appointed. The drafting started in early 1974 and the Constitution was first presented to the cabinet in February, before sailing through the Assembly.
9.4.2 The Concept of Rachaprachasamai Constitution (King-People “Joint” Constitution)
The 1974 Constitution had literally been granted by the king through direct royal appointment of both the prime minister, called “the royally-granted prime minister” (nayok phrarachathan) and the legislature, called the “royally-granted house” (sapha phrarachathan). Its preamble reaffirmed the myth of Prajadhipok’s initial royal octroy:
King Prajadhipok granted the constitution of Siam to the Siamese people on December 10, 1932 – which established democracy in Siam, in accordance with the royal wish to grant royal power to the Siamese people in its entirety, not to a person or a group in particular; [a democracy] in which the Head of State exercises sovereignty of the people in accordance with the provisions of the Constitution.Footnote 9
In line with the principle of royal sovereignty inherent in the doctrine of royal octroy, the king could veto, as well as order, the holding of a referendum on any proposition of constitutional revision (Article 220). This Constitution, which was highly royalist – as the Senate was initially fully and directly appointed by the king (Article 107) – was referred to as the “King-People Joint Constitution” (rattathamanun chabap rachaphrachasamasai), owing to the role played by the king in its engineering, together with the amount of public participation involved (Kobkua Reference Suwannathat-Pian and McCargo1981, 58). Rachaphrachasamasai (joint King-people) was actually a transformation of the old doctrine of anekchonnikon samosonsammut according to which the king and the people are one united body, a complementarity between “Heaven” and “Earth,” itself echoing the mahāsammata doctrine:
According to the mode of governance of rachaphrachasamasai, the Monarchy and the people govern together. The Monarchy has more prerogative to govern than in a democracy and the people also have more power to govern than in the past experience of Thai Democracy. The Monarchy and the People in such a system are not dangers to one another. They love each other and help each other always. If the Monarchy and the People unite to govern the country together, and help each other out, as has always been the case, I have the hope that our land will turn into the land of peace and development in all dimensions according to the wishes of the people.
In the same period, a new doctrinal theory, named “Democracy with the King as Head of State” (prachatipatai seung mi phramahakasat pen pramuk), emerged, building on the idea of rachaprachasamasai and mixing elements of constitutional monarchy, notably Walter Bagehot’s tripartite convention (the king has “the right to be consulted, to warn and to encourage”) and elements of Buddhist kingship. This theory referred to kingship as being defined by the Ten Virtues of a Righteous King, and by the king’s election – in other words, the modern king was still both a dhammarāja and a mahāsammata. In “the Democratic System with the King as Head of State,” there were two sources of law. The positive law (khotmai) gave the king the power to exercise sovereignty in the executive, legislative, and judicial domains through the cabinet, the parliament and the judiciary, as well as grant royal pardons and receive petitions from the people, following Bagehot’s tripartite convention. The royal customary law (rachaphrapheni) was composed of the 26 Royal Virtues. These were the Ten Virtues of a Righteous King (generosity, morals, sacrifice, honesty, gentleness, diligence, compassion, non-violence and non-harm, patience, and righteousness); the Twelve Virtues of the cakravartin (chakravativat) (to love and be compassionate to his subjects, to adhere and maintain dhamma, to judge cases with justice, equity and rapidity, to listen to the advice of philosophers and act accordingly, to abstain from committing the five major sins – killing, stealing, committing adultery, lying, and drinking alcohol – to feel compassion and not envy the wealth or the work of the people, to collect taxes but not to increase them, to give to the poor, to distribute wealth to civil servants, to judge cases meticulously, to honour and look after brāhmaṇas and philosophers, and to distribute rewards and honours to those who are deserving); and the additional Four Virtues of a bodhisattva (sangkhahawatu) (a sense of sacrifice, carefulness in speech, social usefulness in action, consistency and appropriateness of action) (Thanin Reference Kraivichien1976, 32–33).
The aim of a dhammarāja king is to attain the status of cakravartin and bodhisattva by demonstrating the perfect practice of these twenty-six cumulative virtues (Sawaeng Reference Bunchalemphiwat2000, 90–93). As presented in this formula, then, modern Buddhist kingship still relied on the ideals of bodhisattva, cakravartin, mahāsammata, and dhammarāja, and royal customary law still pre-existed positive law. In his authoritative handbook on the subject, Thanin Kraivichien gives, as an example of a key kingly duty, that of giving (than) a constitution to his subjects (Reference Kraivichien1976, 33).
9.4.3 The Concept of “Shared Sovereignty” between the King and the People
In developing the theory of “Democracy with the King as Head of State,” Thanin suggested that “Thai-Style Democracy” did not require a constitution nor elections held periodically. Since the king was, in a mythical sense, elected, and thereby represented the people, there was democracy, even in times of military dictatorship. In addition, the king always retained his sovereignty: being the army chief, the king was, during coups or when there was no constitution under military dictatorship, still fully sovereign (Thanin Reference Kraivichien1976, 26–29). Regarding the king’s role in times of crisis, Thanin stated: “when the country enters into a crisis, one can no longer rely on the constitution at all. One must rely on the wisdom (phrapricha) of the king” (Reference Kraivichien1976, 58). Thanin’s legal theory established the king as commander of the army and source of political legitimacy. He linked it with the legality of military coups through the royal prerogative of declaring and revoking martial law:
In military terms, the monarchy (phramahakasat) means “great warrior.” This is because in ancient times, the king was the one leading in the battlefield, fighting courageously against the enemy … The legacy has continued until today, and that is why the king is the army chief according to the constitution … The title of general (chompon) is the highest in the military hierarchy, it is true, but the king has an even higher status, which is army chief. It is not a military rank, but it is a title for the monarchy specially, which is based on royal constitutional customs (nittirachaphrapheni) since ancient times … That is why this constitution gives the king the title of army chief and the power to declare and revoke Martial Law.
Finally, building on both the theory of rachaprachasamasai and the theory of “Democracy with the King as Head of State,” prominent Thai jurists later developed the “doctrine of King-people’s shared sovereignty,” according to which the king and the people hold joint or shared sovereignty, something which bears practical consequences in times of military coups:
In the Thai democratic system, sovereignty is held by the king and the people. It thus differs from other countries in which the people are the only bearer of sovereignty. There are two reasons for this. The first reason relates to traditions (phrapheni). The Thai Monarchy is identified with the Thai people, and this has become a tradition. The second reason relates to law. Sovereignty has at all times belonged to the king. When the People’s Party changed the system of government, the royalty, holder of sovereignty, granted it to the people by giving a constitution. The king accepted to be placed under the authority of the constitution but would still have the sovereign power in the name of the people. Whenever a coup abolishes the constitution, one must consider that the power given with the constitution goes back to the monarch, being the sovereign before June 24, 1932.
According to this doctrine – which was never explicitly accepted by the court (Mérieau Reference Eugénie2021, 241) – whenever the king signs the interim constitution after a coup, the act is considered legal, and sovereignty becomes “shared” with the people. The coup then is legalised whenever it bears the king’s signature. This all derived from the fact that the king is the source of the Constitution. In The Monarchy in the System of Democracy, a book commissioned by the National Legislative Assembly appointed by the military in 2007, prominent Thai jurist Meechai Reechupan explained how Thailand’s luck, “a luck unique in comparison to other countries,” was that all Thai kings, whether absolute or constitutional monarchs, had always ruled according to doctrines of Buddhist kingship, and because – since Prajadhipok had unilaterally granted the 1932 Constitution to the people (the Interim Constitution bearing the sole signature of the king) – the monarchy remains to date the source (thi ma) of the Constitution and constitutionalism in the country (Meechai Reference Reechupan2007, 5). Even though this doctrine was never explicitly recognised by the courts, implicit references and traces of the doctrine can be found in several landmark rulings of the Constitutional Court.
The dhammarāja (cakravartin/bodhisattva) and mahāsammata theories of royal power – what can be called “the four images of Buddhist kingship” – were progressively secularised throughout the late nineteenth and early twentieth centuries, then Westernised and articulated with legal and constitutional theories in the 1930s. The Siamese term for dhamma, based on the Pali word, was used to Buddhicise the Western borrowings so as to “indigenise” them. The nineteenth-century European model of limited monarchy, relying on the idea of the royally granted constitution, was imported and hybridised with the doctrine of the elected king and the Hindu-Buddhist conceptions of kingship and the law. By the 1930s, all references to the dhamma, the thammasat or the rajasat had seemingly been removed from the law and the doctrines of kingship, but in fact, they had been re-invested in a new sacred object: the Constitution. The fiction of the Constitution as a royal octroy was enshrined in the preamble to the 1932 Constitution and since then, a reference to the royal octroy appeared in almost all permanent constitutions. In law handbooks, various doctrines on royal sovereignty (such as rachaprachamasai) married the doctrine of “granted constitutionalism” with that of the dhammarāja doctrine. Altogether, the doctrine of royal constitutional octroy, according to which the Constitution is a royal gift, established the king as the source of the Thai constitutional order, therefore endowed with powers to grant, suspend, and abolish the Constitution.
These various theories, derived from the bricolage of Western and Buddhist concepts of the Constitution as the king’s gift to his people, still have much salience today. The 2017 Constitution states in its preamble that it has been graciously “granted” by King Vajiralongkorn, following the initial “royal octroy” of a constitution by King Prajadhipok in 1932. Additionally, the document refers to the Buddhist-kingship-infused narrative of “Democracy with the King as Head of State” almost fifteen times in the body of its text: “Democracy with the King as Head of State” is defined as Thailand’s constitutional identity, protected by the Constitutional Court from both amendment (through an eternity clause prohibiting amendment) and from “threats” by political parties and individuals (by a clause allowing the court to order the cessation of such “threat” including the dissolution of the political party in question). Like former Thai constitutions, the 2017 Constitution gives the king a constitutional veto over all constitutional, legislative, and executive matters – in fact, the title on the monarchy in successive Thai constitutions has been the most stable of all titles since 1932. In the words of Thanin, “the reason why the status of the monarchy was never changed in any epoch, no matter how many times the constitution was abrogated, is because this institution has ultimate stability and has inherent perfection so that there has never been any need to alter it” (Reference Kraivichien1976, 30).
10.1 Introduction: Buddhist Constitutionalism under Military Rule
In Burma/Myanmar, the constitutional regulation of religion has undergone major shifts following the country’s successive political transformations from democratic multi-party system to one-party (one man) socialist military rule, to military “law and order” rule, to hybrid regime and “post-dictatorship,” and as of February 1, 2021, direct military rule. The constitutional management of religion in Burma/Myanmar has relied upon democratic procedures or been the object of public discussion only for very short periods of time (1948–58, 1960–62, 2011–21). Moreover, due to military rule and the illiberal 1974 and 2008 Constitutions, legal claims and litigation have rarely been a way for politically disempowered actors, such as non-Buddhist religious minorities or Buddhist “deviant” groups, to gain state recognition or support.
With the 2011 political reforms, however, legal debates about religion surfaced again in parliament, as well as in the public sphere. This paper looks at various forms of constitutional practice with regards to religion in Burma/Myanmar, by which I mean “the acts of drafting, debating, implementing and invoking constitutional law” (Schonthal Reference Schonthal2016, 11). It should be underlined from the onset that such activism as a form of public practice has – even during the years of political liberalization – been scarce on account of authoritarian, military rule. Exactly how the February 1, 2021, military coup will affect constitutional law in Myanmar remains to be seen, but Buddhist protectionist associations such as the Buddha Dhamma Parahita (formerly known as MaBaTha) issued statements showing strong support for the 2008 Constitution, just hours before the coup. This indicates support to the Tatmadaw (the military) at least among certain leading monks, and more importantly for the purpose of this paper, support for the ways in which Buddhism is protected in the Constitution.
“Buddhist constitutionalism” is defined by Benjamin Schonthal (Reference Schonthal2017, 707) as “attempts to use written constitutions and other basic laws to organize power in ways that protect and preserve Buddhist teachings and institutions, especially the institution of Buddhist monasticism, the sangha.” Central to Buddhist constitutionalism are questions about how to balance royal/political authority and ecclesiastical authority. This, Schonthal points out, is in contrast to Islamic constitutionalism (which concerns the application of transcendent laws in a man-made legal order), as well as secular-liberal constitutionalism and questions regarding the balance between religious privileges and general religious rights. As this chapter will show, the case of Burma/Myanmar clearly confirms the centrality of questions pertaining to the balance between political and ecclesiastical authority. However, the paper also argues for a broader understanding of Buddhist constitutionalism, which expands the concept beyond the conundrum of political versus ecclesiastical authority, to include a wider range of policies and laws that seek to enact constitutional preferences for Buddhism. This expanded set of pro-Buddhist policies include prima facie “secular” civil law and the Penal Code as well. Thus, the key regulatory issue at stake is not only sangha affairs, but also the privileging of Buddhism vis-à-vis other religions in a wide array of policies and state law. Broadening the concept of Buddhist constitutionalism in this way helps scholars to acknowledge the unwritten or “living” forms of Buddhist constitutionalism that also influence social and political life.
This chapter proceeds in five parts. The first section analyses Buddhist constitutionalism in postcolonial Burma/Myanmar from a historical perspective. The second section analyses Buddhist constitutionalism and its return in the 2008 Constitution. The third section discusses current regulatory contestations between political and ecclesiastical authorities, making the argument that secularism in postcolonial Burma/Myanmar is a function of Buddhist constitutionalism, rather than the result of British colonial policies. The fourth section discusses what I suggest is the protection of Buddhism through “secular” law, focusing on the 2015 “race and religion” laws and religious offense legislation. The fifth and last section analyzes Buddhist constitutionalism as a form of alterity vis-à-vis Myanmar’s religious minority communities.
10.2 Historical Background: The Return of Buddhist Constitutionalism in Myanmar
Inspired by clauses in the Irish Constitution at that time, Burma’s 1947 Constitution included two articles of consequence as it relates to Buddhism: Article 21(1) held that “The State recognizes the special position of Buddhism as the faith professed by the great majority of the citizens of the Union;” Article 21 (4) prohibited the “abuse of religion for political purposes.” This ambiguity between state protection for Buddhism, on the one hand, and strict separation of religion and politics on the other came to mark Burmese democratic politics in the years to follow.
Independent Burma’s first prime minister, U Nu, had a strong Buddhist revivalist agenda, and the initial few years of democracy witnessed vibrant constitutional debates and activism to promote state protection of Buddhism. The Buddhist constitutional policies of the U Nu era included the Vinasaya Act of 1949 (registration of monks and sangha courts), the Buddha Sasana Council Act (1949), the Pali University and Dhammacariya Act (1950), and the Pali Education Board Act (1952). Monastic associations at the time suggested that Buddhism should be the state religion and opposed freedom of religion. In his 1960 campaign, U Nu called for Buddhism to become the state religion and managed, in August 1961, against strong opposition from Burma’s non-Buddhist minorities, to make Buddhism the state religion (Kyaw Win, Mya Han & Thein Hlaing Reference Win, Han and Hlaing2011, 96–102). However, this constitutional amendment was soon to be abolished by General Ne Win, who came to power during the military coup of March 2, 1962.
The first period of military rule (1962–88) represents a radical shift in the constitutional regulation of religion and secularism (as ideology) in Burma. In contrast to U Nu, the Ne Win regime hardly referred to Buddhism, and the 1974 Constitution does not mention any state preference for Buddhism. Furthermore, the 1974 Constitution is strictly secularist in that it states that “Religion and religious organizations shall not be used for political purposes” (Article 156c). It grants equality before the law and religious freedom, but limits those rights with reference to “national solidarity and the socialist social order” (Article 153b, The Constitution of the Socialist Republic of Burma 1974). The 1974 Constitution did not offer any form of legislative representation for ethnic groups, but introduced new forms of recognition of ethnic claims, such as “Seven States” and “Seven Divisions” (Crouch Reference Crouch2019).
Ne Win generally turned a blind eye to the issue of regulating the sangha throughout the 1960s and 1970s. However, Buddhism – particularly the sangha – was subject to increased legal regulation from 1980 onwards, in order to control so-called “unruly” monks and subsequently to curb monastic resistance to the regime. In May 1980, General Ne Win’s government convened the Sangha Convention of All Buddhist Gaing for the Purification, Perpetuation, and Propagation of Theravāda Buddhism, and, in the name of “purification,” streamlined the sangha and imposed direct control over its monastic members. Only nine gaings (Buddhist sects) have since become officially recognized by the state. Ne Win also formed the State Sangha Maha Nayaka Committee, which oversees the sangha.
Attempts to effectively act on the Vinasaya Act from 1949 had failed during the early years of Ne Win’s rule as part of its secularist orientations (Tin Maung Maung Than Reference Than1988). Vinaya transgressions were only to be dealt with within each monastic lineage, or gaing. Without a state-backed supra-gaing structure in place, no rulings regarding heresy (adhamma) could be made. It was not until 1980 that a specific legal system to deal with vinaya cases came into place at the national level, as will be discussed in detail later.
The 1988 democratic uprising eventually led to the collapse of the socialist regime, only to be replaced by direct military rule (1988–2011): first through the State Law and Order Restoration Council (SLORC) and later by the State Peace and Development Council (SPDC). The new junta abandoned a socialist ideology altogether, and the SLORC/SPDC made “law and order” its new slogan, which did not imply the rule of law, but rather subsuming law into order. In this period, a new hierarchy of judges, comprised of bureaucrats and administrators, resurrected a system marked by non-independence and “unrule” of law. As Cheesman (Reference Cheesman2015) points out, in contrast to the Ne Win years, soldiers were no longer necessary in the courtroom as the civilian judiciary was fully subordinated to military interests.
From 1988 to 2008 the country was ruled without a constitution, but in the same period the military was preoccupied with drafting a new constitution, making the drafting process of the 2008 Constitution one of the longest constitution-making exercises in the world (Crouch Reference Crouch2019, 27). The drafting of a new constitution was part of General Khin Nyunt’s 2003 document, “Roadmap to a Discipline-Flourishing Democracy.”Footnote 1 The constitution-making process was isolated from public debates, and submissions from ethnic groups regarding language rights and customary laws were ignored (Crouch Reference Crouch2019). To what extent Buddhist monks and laypeople outside of the military were active in pushing the constitution-makers for constitutional protection of Buddhism remains unclear. What is clear, however, is that the Buddhist protection clause (Article 361, 2008 Constitution) is taken verbatim from the 1947 Constitution. One explanation for the return of Buddhist constitutionalism relates to military reorientation after the 1988 violent crackdown on the student movement and pro-democracy monks. The regime needed to repair its relations to the sangha through its so-called saya-dayaka (monk-donor) program, which eventually resulted in a state-sponsored Buddhist nationalist ideology (Schober 2011). However, reducing monastic-military relations to pure strategy would be to ignore the fact that the military is largely comprised of Buddhists and that monks serve as “military chaplains,” consoling soldiers and boosting their morale, for example during the 2017 massive violence against the Rohingya population in Rakhine. Thus, understanding the importance of Buddhism to the military needs to move beyond mere instrumentalism.
10.3 Secularism as a Function of Buddhist Constitutionalism
The highly controversial 2008 Constitution institutionalized a military state in Myanmar, enabling the role of the military in governance. It contains three meta-principles: non-disintegration of the Union, non-disintegration of national solidarity, and the perpetuation of sovereignty (Basic Principles, 2008 Constitution). The military treats the 2008 Constitution as a sacred object – insisting on faithfulness to the Constitution itself – and resists all attempts at constitutional reform. This raises some interesting questions about ideology, rituals, and materiality with regard to the 2008 Constitution. First, in saying that it is sacred, I refer to the fact that it is treated as a self-referencing text, the authority of which lies within its status as a foundational charter for military rule – a document that, for the military, ought not to be changed. Second, members of parliament are obliged to make an oath (which is outlined in Schedule Four of the Constitution itself) to “uphold and abide by the Constitution,” and by that, pressurizing MPs to be loyal to military ideology as enshrined in the Constitution. The material book is used in this oath-making ritual in parliament (for military and civilian MPs alike), as a way for the military to ensure loyalty to its ideology. This explains Aung San Suu Kyi and the initial refusal by her party, the National League for Democracy (NLD), to partake in the Oath ritual in 2012.
As a political document that enshrines the authoritarian ideology of the military state, it would be an understatement to say that the 2008 Constitution has received strong criticism. The 2008 Constitution is the site of contestation between the military, the ethnic minority parties, and the NLD, and constitutional reform has been first priority for the NLD. Not surprisingly, therefore, after the February 1, 2021, military coup, protesters have been tearing apart or burning the material book in public, and later posting images of such events on social media, as a sign of their commitment to end military rule.
Put simply, the principle of non-secession and self-determination is controversial for the ethnic minorities and their political parties and Ethnic Armed Organizations (EAOs), while the role of the military in politics has been the main issue of contestation for democracy activists in majority population areas. Importantly, however, the question of Buddhist constitutionalism is, as we shall see, one that has been avoided in public debate, but simmers under the surface.
The 2008 Constitution is a mix of ideas from the 1947 Constitution, the 1974 Constitution and the post-1988 military ideology. Put another way, it draws on colonial legality, socialist legality, and military legality. Importantly, it focuses on duties rather than rights, which affects the ways in which religion is regulated. In the following, I will identify what can be regarded as “Buddhist” in the 2008 Constitution, identifying four sites of Buddhist constitutionalism in the text: religious privilege, morality, temporality, and, counterintuitively, secularism.
First, there is the privileged, but not necessarily preeminent, status given to Buddhism as a religion. Article 361 grants Buddhism a special position as the majority religion, which is taken almost verbatim from the 1947 Constitution (Article 21 ). Article 362 “recognizes Christianity, Islam, Hinduism and Animism as the religions existing in the Union at the day of the coming into operation of this Constitution.”Footnote 2 In this way, the Constitution balances Buddhist constitutionalism on the one hand, and the recognition of Christianity, Islam, Hinduism, and Animism and, as discussed below, secularist orientations on the other.
Second, Chapter 1, “Basic Principles of the Union,” lists as a state responsibility that “The Union shall strive for youth to have strong and dynamic patriotic spirit, the correct way of thinking and to develop the five noble strengths” (Article 33). This is a reference to the Buddhist principle of pañcabalāni (“five strengths”): faith (saddhā), energy (viriya), mindfulness (sati), concentration (samādhi), and wisdom (paññā). This is, in fact, the only explicit reference to Buddhist principles in the entire Constitution. It is an article that cannot be missed as it not only imbues the text with a certain Buddhist quality, but even more importantly, explicitly makes it a state obligation to foster new generations of Buddhist citizens. This emphasis on Buddhist virtues is not present in the 1947 and 1974 Constitutions.Footnote 3
Third, as in the Thai and the Sri Lankan constitutions, Buddhist constitutional privilege in Myanmar is also shown in the preference of the Buddhist calendar. Referring to the approval date of the Constitution – the tenth waxing day of Kasone 1370 M.E. (“May 29, 2008, CE” in the official English translation) – the text situates the political community with reference to Buddhist historiography. The Burmese Buddhist calendar is used in all legislation, in addition to a range of other social settings, including the press statement announcing the 2021 military coup. Burmese Buddhist temporality is also present in the 1947 and the 1974 Constitutions, and for the latter, it is the only reference to Buddhism.
Fourth, parallel to the constitutional privileges discussed above, the 2008 Constitution expresses a specific secularist orientation by referring to a remarkably strong separation between “religion” and “politics.” Some of these articles are similar to the two previous constitutions, while other articles are new to the 2008 Constitution, expanding on existing principles of institutional differentiation between “religion” and “politics.” Chapter 4, the “Legislature,” Article 121, specifies who is disqualified for election to the Legislature, listing (among many others) persons who receive support from foreign religious organizations (Article 121g), persons who convince others to vote or not vote based on “religion for political purpose” (Article 121h) and members of religious orders (Article 121i). In addition to banning parliamentarians from using religion for electoral purposes, Chapter 8, “Citizen, Fundamental Rights and Duties of the Citizens,” bans the abuse of “religion” (however defined) for political purposes among citizens generally (Article 364). Any action that sows enmity between religions and races is considered unlawful (Article 364).
On elections and voting rights, Chapter 9 (Article 392a) states “members of religious orders” do not have the right to vote, which is primarily interpreted as Buddhist monks and nuns, as well as Catholic fathers and nuns, but in practice this is a field open for negotiation, and one might add, corruption. Ordained members of the Catholic Church are disenfranchised, the Muslim ulema are granted voting rights, and Protestant, Evangelical, and Baptist ministers are, depending on local context, sometimes entitled to vote and sometimes not. The rationale behind these distinctions is less than clear, but as the Constitution specifically states “members of religious orders” it is reasonable to argue that the distinctions in voting rights depend, at least in part, on officials’ perceptions about how organized a group is – and perhaps how closely it resembles sangha organizational structures. As such, this can be read as an example of a Buddhist formatting process of non-Buddhist institutionalized religion.
The principle of separation between “religion” and “politics” is further elaborated in Chapter 10, “Political Parties,” which specifically prohibits political parties from directly or indirectly receiving funding from a religious association (Article 407c), and furthermore, that a political party is not allowed continued existence if it is found guilty of “abusing religion for political purpose” (Article 407d). In case of violation, the party’s registration shall be revoked. This provision is further developed in the Political Parties Registration Law No. 2/2012, 6(d) which prohibits political parties from writing, speaking, and campaigning in a manner that will instigate conflict or violence among religious and ethnic groups or individuals. Articles 121 and 407 are new to the 2008 Constitution, indicating how the Tatmadaw military foresaw how religion could be a mobilizing factor in parliamentary elections.
How are we to understand this particular conceptual division between the “religious,” the “secular,” and the “political” expressed in Myanmar’s three constitutions? It is my contention that in the case of postcolonial Burma/Myanmar, secularism was not separate from Buddhist constitutionalism, but rather a function of it. This likely echoed British legal distinctions between the “religious” and the “secular” that undergirded colonial policies. However, this path dependency might also predate British colonial policies of secularism: a key point in Theravāda Buddhist political ideology is a formal divide between the state and the monastic order.Footnote 4 With the introduction of modern political systems, this has been interpreted in different ways. Sri Lanka introduced universal suffrage as early as 1931, and accordingly the monks gained civil and political rights on a par with all other citizens (Schonthal Reference Schonthal2016). This is completely different from the situation in Myanmar (and Thailand), where Buddhist monks and nuns are deprived of their political rights. The ostensible reason is to cohere with a Theravāda Buddhist political paradigm, namely that there should be a formal separation between the monastic order and political power. Translated into modern democratic language, lawmakers have justified these provisions as protecting the order from political participation. This kind of logic goes back to 1946 when monks in Burma were formally disenfranchised, after strong pressure from the monks themselves (Larsson Reference Larsson2015).
The 2008 Constitution reads “members of religious orders,” which means that monks and nuns do not have the right to vote, form political parties, stand for election, or sit in parliament. Melissa Crouch (Reference Crouch2019, 62) argues that this reflects “the Tatmadaw’s concern that Buddhist monastic authority is a rival center of power that needs to be constrained in the military-state.” Myanmar’s half-million monks and nuns comprise a significant base of would-be voters, and it is easy to jump to the conclusion that this rule was introduced either by British colonial powers due to their secularist preferences, or by the later military regime in order to restrict monastic “political activities” and hence curb regime resistance. In this way, the question of monastic disenfranchisement represents a political paradox. One the one hand, it points to the privileged status of Buddhism within the Myanmar state. On the other hand, it represents a very strict form of secularism, with certain obvious illiberal consequences of depriving particular groups of their basic social and political rights. Importantly – and this is a point to which I shall return in more detail later – this particular form of secularism or even the use of “secular” law is not inimical to Buddhist constitutionalism. It can rather be seen as a function of it.
Leaving the question of secularism aside for a moment, what exactly does the preferential treatment of Buddhism mean in the Burmese context? It should be noted that the Constitution does not grant Buddhism the status of state religion, but as I argue in an earlier article (Frydenlund Reference Frydenlund2017), Article 361 as well as post-1988 reorientations toward Buddhist symbols and institutions indicate that the state has become a de facto Buddhist state. State policies in support of religion have their support in Article 363, which says that “[t]he Union may assist and protect the religions [bathathathanamyar] it recognizes to its utmost.” Clearly, this implies state support for all recognized religions, but as shown below, what it means in reality is heavy state support for specific forms of Theravāda Buddhism.
For example, the Department for the Promotion and Propagation of the Sasana, under the Ministry of Religious Affairs and Culture (MoRAC) reaffirms the constitutionally protected right of religious freedom but gives economic and administrative priority to Buddhism as the majority religion. The Ministry also appears to favor Buddhism over other religions in the higher education sector, as seen in state funding of the State Pariyatti University and the International Theravāda Buddhist Missionary University. In addition, the Ministry coordinates Buddhist missionary activities in the name of thathana-pyu or “the dissemination of sāsana,” which has been an essential political project of the Myanmar state since the 1990s (Kawanami 2021). The most controversial aspects of the missionary politics relate to missionary activities in ethnic minority areas dominated by non-Buddhist religions and has been a long-standing concern for Christians in the Chin and Kachin States.
MoRAC is also responsible for dealing with sangha matters, in consultation with the State Sangha Maha Nayaka Committee often referred to as the MaHaNa – a state-sponsored monastic body that oversees the sangha. Despite its focus on Buddhist affairs, the MoRAC also oversees affairs relating to religious minorities. However, a mapping of attitudes toward the nature of the state and its regulation of religion in Myanmar found that representatives from religious minority communities felt marginalized in relation to the Ministry in terms of protection in territorial disputes with Buddhist monks, access to information, and, above all, with regards to financial support (United Institute of Peace 2021). Such minority grievances raise questions of Buddhist constitutionalism as a form of exclusionary politics that has effects on majority–minority relations. This point will be discussed toward the end of this chapter.
10.4 “Purifying” the Sangha through “Hybrid” Law
Similar to Thailand, but different from Sri Lanka, Buddhist constitutionalism in Myanmar implies heavy regulation of the monastic order. In Thailand, Schonthal (Reference Schonthal2017, 715) notes “crises relate to the integration or expulsion of Buddhist groups from an official national monkhood,” while in Sri Lanka they relate to “deep disagreements over the proper sources of Buddhist authority.” Comparing Burma/Myanmar to Thailand and Sri Lanka, it becomes clear that in spite of instances of monastic resistance to the military regime (e.g., 1988 and 2007) – or as in specific cases of contestation discussed below – a combination of the military state, laws regulating the sangha and the centralized organization of monks in Myanmar inhibit large conflicts within Buddhism, or between the state and the sangha. There are important exceptions to this general trend, however, and questions persist about the integration or expulsion of groups from the state-sanctioned sangha. Disagreements over Buddhist authority also occasionally arise.
As discussed below, with state patronage of Buddhism comes heavy regulation of the sangha. In the following, I analyze two recent examples of contestation over what is considered “proper” monastic behavior: the first case shows how the Penal Code is used to enforce monastic judgments in cases of non-acceptance of the monastic court’s ruling; the second case illustrates the friction between state monastic authorities and certain monks with regard to definitions of the “political.” Such cases sometimes imply a principled resistance to heavy sangha regulation per se, but they can also point to political difference, or specific issues of contestation.
10.4.1 The Vinicchaya Court System
Under British colonial rule, the monastic community retained a relative degree of autonomy in overseeing its internal affairs. It was not until 1980, under the rule of General Ne Win, that a state-level judiciary would oversee monastic affairs. With the establishment of the Buddhist state court system (called Vinicchaya), the state has acquired a highly effective means to uphold specific notions of Theravāda Buddhist orthodoxy and orthopraxy. The court has absolute authority in doctrinal matters and constitutes a particular Buddhist legal culture that shapes and formats Buddhist thought and practice in decisive ways. In these courts, monks may be charged with heresy (adhamma) and malpractice (avinaya) under the jurisdiction of the MaHaNa. Between 1981 and 2017, twenty-one cases were brought before the state Vinicchaya committee, of which three concerned monastic misconduct, and the rest hinged on the degree of misrepresentation or false understanding of Buddhist doctrine. All of the accused have been found guilty (Janaka and Crosby Reference Janaka and Crosby2017, Kawanami 2021).
With few exceptions, those convicted have accepted the court’s decisions. In the two cases where the accused have refused to accept the verdict, the 1990 Law Relating to the Sangha Organization has also been at the regime’s disposal. This law states that anyone disobeying the Vinicchaya Court can be sentenced with up to three years imprisonment. Another legal instrument at hand to ensure compliance is the Penal Code, especially Sections 295–298, on “religious offense.” So far, this has only been applied in the most recent Vinicchaya Court case, namely the Mopyar case. The monk, U Nyana (often referred to as U Mopyar, a reference to his sky-blue outfit), had been found guilty in 1983 of making false superhuman claims – a charge which, according to the vinaya, requires expulsion from the order. Later, he was accused of having established a new gaing, based on his particular “doctrine of present action.” Based on a ruling from 2011, the Mopyar gaing was officially outlawed by the state on the grounds that U Mopyar taught adhamma, or “wrong teachings” (Kawanami 2021). His teaching, which appeared to negate karmic logics of reward and retribution, seems to have been of particular concern to the monastic guardians of Theravādin orthodoxy. When U Mopyar did not comply with the rulings of the Vinicchaya Court, a recommendation was sent from the court to the Ministry of Religious Affairs, and he was charged under Sections 295 and 295-A of the Penal Code for acts “intended to offend religious feelings,” in this case insulting Buddhism. Critics even claimed his activities were an attempt to destroy Theravāda Buddhism. U Nyana was also charged under Section 5(e) and 5(j) of the 1950 Emergency Provisions Act for behavior deemed to be a threat to national security, under which he was sentenced to a further twenty years imprisonment (Kawanami 2021, 21). In 2016 MaHaNa reconfirmed its stand on the Mopyar group as being an illegal sect and both MaHaNa and MaBaTha stated that U Nyana was an internal enemy (thathana atwin yanthu) of Myanmar Buddhism (Kawanami 2021, 22).
As shown by the Mopyar case, secular state law can function as a “back-up” resource when specific Vinicchaya Court regulations fail to regulate “deviant” behavior. The Buddhist court system in Myanmar is mostly a legal mechanism for the conservative and largely “apolitical” sangha hierarchy to uphold specific notions of purity and orthodoxy, within a defined sphere of elite textual specialists (pariyatti monks). The driver of this system is the wish to protect the sāsana from impurity and corruption, based on a specific form of Buddhist scriptural fundamentalism unique to Myanmar. Furthermore, state mechanisms for the legal regulation of religion, both religious and secular, are potential tools for the exercise of political power.
All of this seems to have intensified after the 2011 political liberalization, when the term adhamma replaced the term micchaa ditthi (“wrong views”). Kawanami (2021, 19) observes that compared to micchaa ditthi, adhamma is a broader and more politically loaded term, and that “any particular religious viewpoints that are regarded as threatening to law and order have been called adhamma as a means of de-authenticating and discrediting them.” In this way accusations of and prosecutions for heresy remain tools of the state policy of ngyeinwut pibya-ye (law and order). Thus, Vinicchaya court cases (as well as religious offense cases discussed below) show how the legal regulation of religious offense, blasphemy and heresy have served both religious and political interests.
10.4.2 MaBaTha: Testing the Limits for “Political” Engagement
Given the specific, legally inflected distinction between religion and politics in Myanmar, Buddhist associations such as MaBaTha – which since the 2011 political liberalization have been particularly active in the public sphere – need to avoid possible allegations of “doing politics.” As discussed above, the task of overseeing and deciding on appropriate monastic behavior lies with the MaHaNa, including to what extent monastics are involved in “politics.”Footnote 5 While constitutional articles that prohibit monastic engagement in formal politics (such as monastic disenfranchisement, non-eligibility for parliament, or being members of political parties) are clear-cut, other aspects of constitutional secularism (such as Article 364) are polysemantic fields open for contestation and negotiation. As the MaBaTha case discussed below indicates, what is deemed by MaHaNa as adhamma, or political activity largely depends upon the views of the current government. The case began with the 2013 MaHaNa ruling against a loosely organized monastic network called “969,”Footnote 6 which can be seen as a forerunner to MaBaTha. Or to be precise, MaHaNa banned the political use of the 969 symbol, as well as the creation of formal organizations associated with the symbol, but did not ban the 969 symbol itself, nor did it judge the teachings of 969 as adhamma.
With the entry of the NLD into office in 2016, the ties between the government and MaBaTha loosened. Likely responding to the preferences of the newly elected political leaders, MaHaNa reduced its previous support for MaBaTha by denying them formal recognition as a lawful monastic organization (Walton & Tun Reference Walton and Tun2016). In 2017, after allegations of anti-Muslim hate speech, MaHaNa banned Ashin Wirathu from public speaking and preaching for one year. The decision was made a few days after Ashin Wirathu had publicly expressed support for the assassination of Myanmar’s leading constitutional lawyer, U Ko Ni, a Muslim. A few months later, MaHaNa ruled that the “MaBaTha” name was not in compliance with the 1990 Sangha Law and ordered all MaBaTha signs and symbols be removed (while stopping short of condemning the organization or its activities). While most MaBaTha groups accepted the enforced rebrand and simply continued their activities, the chapters in Mandalay and the Karen State refused, arguing that MaBaTha was not an official sangha organization, and thus did not breach the 1990 Sangha Law. Read one way, the MaBaTha–MaHaNa disputes in 2016–17 might suggest that monks are less regulated compared to those in, say, Thailand. Yet it is important to note that this semi-independence is more contingent upon political context than on legal flexibility: under USDP rule the MaHaNa supported MaBaTha and its campaign for the so-called race and religion laws, while it limited MaBaTha once the NLD came into power. As previously noted, MaBaTha monks supported MaHaNa in banning the Mopyar sect. Clearly, then, the contestation between MaHaNa and MaBaTha is more about manoeuvring shifting political landscapes than resistance to high levels of state regulation per se.
10.5 Defending Buddhism through Civil Law and the Penal Code
So far, I have analyzed some of the ways in which state obligations to protect Buddhism have resulted in heavy sangha regulation. In the following sections, I move to other areas of state law such as civil law and the Penal Code, which appear to be based on principles of secularism and equality between ethnic and religious groups (a kind of de jure egalitarianism). However, as I will argue below, even these forms of “secular” law have increasingly been used as legal tools for Buddhist protectionist actors, which can be seen as attempts at legally locking in Buddhist claims to the state. Or put differently, they can be seen as acts of Buddhist statecraft.
Understanding how nominally secular law can be used to enact Buddhist constitutionalism is particularly important given the restricted space for constitutional practice in Myanmar: the Constitution’s provisions have not been the subject of constitutional adjudication; there are very few Constitutional Tribunal decisions; access to the tribunal is highly restricted; and the protection of rights via petition in the Supreme Court is highly circumscribed (Crouch Reference Crouch2019). Therefore, there is very limited space for taking Buddhist grievances to the higher judiciary. Under military rule, public law is weak and the possibilities for Buddhist interest litigation or legal activism curbed. Certainly, the Vinicchaya Court is important for sangha regulation and doctrinal issues, but it was not until the years following the 2011 political reforms, that Buddhist activists could engage in public legal activism to secure the sāsana beyond Vinicchaya courts. In the following, I analyze two forms of Buddhist legal activism in secular state law, which aim at securing the sāsana in lay Buddhist society.
10.5.1 The 2015 Race and Religion Laws
The early years of political liberalization (2011–15) witnessed a marked rise in Buddhist nationalism. In 2015 this resulted in the passing of a package of four laws, referred to as the “race and religion laws,” which sought to regulate marriages between Buddhist women and non-Buddhist men, to prevent forced conversion, to abolish polygamy and extra-marital affairs, and to promote birth control and family planning in certain regions of the country.Footnote 7 Mobilization of MaBaTha was key to passing the legislation, and their declared motivation for legal activism was the protection of Buddhism, particularly against the alleged “Islamization” of Myanmar and claims of violations of religious freedom for Buddhists, predominantly Buddhist women (Frydenlund Reference Frydenlund2017).
Among these laws, the Religious Conversion Law is of particular interest because it makes explicit reference to the Constitution. The final version of the Conversion Law does not have a preamble, but a preamble contained in its second draft version gives a clue of the rationale behind the law. That draft preamble repeats the language of Article 34 of the Constitution on freedom of religion, but states that there is a need for transparency and a system in place to ensure the right to freedom of religion and the freedom to choose and convert to another religion. A repeated aim is to ensure that change of religion is according to the individual’s “own free will.”Footnote 8 A set of formal procedures and an application process supposedly guarantees converts free will, including an interview with a committee to ensure that the applicant has a free conscience. Compared to the first draft, the final law contains a more developed religious freedom discourse, in which the stated aim is not to ban conversion, but to secure freedom from coercion. This is also evident in the fact that the law allows for persons to declare allegiance to atheism, or no-religion (batha-me), thereby explicitly stating for the first time one’s right not to have a religion (Frydenlund Reference Frydenlund2018).
With the exception of the Marriage Law (which distinguishes between “Buddhist” and “non-Buddhist”), the language of the “race and religion laws” refers to “religion” (batha) in the neutral, which means that the laws apply to all Myanmar citizens, regardless of the religious identity given in one’s National Identity Card. Given the political-legal context and the rationale given by MaBaTha itself, the laws were clearly made to protect Buddhism, but their generic language makes them seem applicable to all citizens. As with the monastic disenfranchisement discussed above, supposedly secular laws do not always ensure impartiality and neutrality with regard to state regulation of religion. They can also be effective means for protecting religious privilege.
10.5.2 Protecting Buddhism from “Offense”
Compared to the monastic courts discussed above, cases involving lay people – Buddhist or non-Buddhist – with regard to “religious offence” fall under the Penal Code and are usually dealt with in general state courts (as the Mopyar case illustrates, however, a case can also move from the monastic court to the general court.) Such “religious offense” legislation was introduced by the colonial state to ensure interreligious harmony between its subjects as it sought to protect the religious feelings of all citizens.Footnote 9
Since 2011, charges of religious offense against lay people have become another important form of sāsana protection (Frydenlund Reference Frydenlund, Rollier, Frøystad and Ruud2019). In particular, two cases of religious offense have made national headlines in recent years, both passed after strong mobilization by MaBaTha.Footnote 10 The first case involved a dual British/New Zealand citizen, Phil Blackwood, and two Burmese citizens, Tun Thurein and Htut Ko Ko Lwin. All were found guilty in 2015 of “insulting religion” for a psychedelic bar advertisement depicting the Buddha wearing headphones and accompanied by the text “Bottomless Frozen Mararita [sic] K 15000.” On the eve of December 9, 2014, Blackwood posted the ad on Facebook to promote cheap drinks at the V Gastro Bar in Yangon. The ad went viral, and after having received several complaints, he removed the image and posted an apology. Following complaints made by MaBaTha, the police took action. Only hours later the three were arrested and sent to prison, charged under the Penal Code, Sections 295 and 295-A. According to the judge, who heard the case in the Bahan Township Court, Blackwood’s apologies in court did not remove his guilt of having “intentionally plotted to insult religious belief” (Kyaw Phyo Tha Reference Tha2014). The judge deemed, moreover, that Blackwood should have known that this would hurt Buddhist feelings and sentenced the three men to two and a half years in prison with hard labor.
The second case was against the writer and NLD activist, Htin Lin Oo, who gave a speech at a literary festival in Chaung-U Township in Sagaing Division in 2014. In this speech, he criticized the use of Buddhism to promote discrimination. Shortly afterwards, a ten-minute edited video appeared on social media, causing outrage among MaBaTha monks. He was charged by the Chaung-U Township Court, after a complaint was filed against him by township officials, under Sections 295-A and 298. In his speech Htin Lin Oo pointed out that the Buddha was not Burmese, not Shan, not Karen, nor did he belong to any of Myanmar’s national races. He stated, “if you want to be an extreme nationalist and if you love to maintain your race that much, don’t believe in Buddhism.” The speech concluded by stating that “Our Buddhism is being destroyed by these people wearing robes”.Footnote 11 He was acquitted of the charge of “wounding religious feelings,” but found guilty of the charge of “insulting religion.” He was sentenced to two years in prison, then released, but was among the first to be sentenced again after the 2021 military coup.
In both cases, MaBaTha monks attended the public spectacles outside the respective courtrooms – something that would have been unthinkable just a few years before. During military rule, judicial proceedings were held in secret. There were closed trials and no coverage of cases in public media, particularly from the 1980s onwards. Yet the conjuncture of economic and political liberalization, as well as a new media reality, created new spaces for monastic engagement in public life, including legal activism. Although press freedom was still under heavy pressure, court cases were again reported in the media. From the MaBaTha point of view, race and religion legislation and blasphemy cases were tools that could be used to protect the sāsana and ensure that the state acted as a guardian of Buddhism.
10.6 Contesting Buddhist Constitutionalism
So far, I have made the argument that Buddhist constitutionalism in Myanmar has produced a specific form of secularism through the process of legally defining religion in particular ways. I have also argued for the need to address Buddhist constitutionalism beyond the constitutional text in order to capture how a wide range of policies and legal practices promote Buddhism in particular ways. This calls for a differentiation between explicit and implicit forms of Buddhist constitutionalism. In the following section, I will analyze the practice of Buddhist constitutionalism in the context of massive humanitarian crisis, ethnic cleansing, and civil war. Again, as discussed above in regard to the prima facie secular and egalitarian quality of the Penal Code and the “race and religion laws,” I would like to emphasize the need for the study of Buddhist constitutionalism to go beyond sangha-political controversies and systematically analyze the effects of Buddhist constitutional practices upon interreligious relations and ethnic minorities.
Historically, several of Burma’s insurgencies are related to the question of Buddhist constitutionalism. Both the formation of the Kachin Independence Army and the Chin rebellion can be seen as direct responses to the 1961 amendment to make Buddhism the state religion (a move that was overturned by the military following its 1962 coup). Even among non-Bamar ethnic groups that are majority Buddhist, such as the Shan, the 1961 efforts to make Buddhism the state religion were seen as counter to the Panglong Agreement and so resisted. Therefore, peace negotiations and religious constitutionalism are two closely related questions, at least as seen from an ethnic and religious minority point of view.
As previously discussed, the military is concerned with presenting itself as the protector of the sāsana. For example, at the third Advisory Forum on National Reconciliation and Peace in Myanmar in NayPyiTaw on November 14, 2019, the Commander-in-Chief of Defense Services, Senior General Min Aung Hlaing, explicitly reminded the multireligious audience of the fact that Buddhism has a special position in Myanmar. General Hlaing said:
Despite the fact that every country around the world has citizens of different religions, all of them pay heed to the religion which is practiced by the majority in the country. Cultural evidence suggests that religious beliefs in Myanmar date back to Pyu Period, the most ancient period of the country. Pagodas in Bagan are testimony to the fact that Theravāda Buddhism has been practiced by the majority since Bagan Period, the first Myanmar Empire in AD 11. And there are also comprehensive historical records that the majority of Myanmar citizens have wholeheartedly embraced Buddhism in successive periods. Only after Myanmar fell under colonial rule, followers of Christ and other religions have increased.
In this speech Hlaing clearly privileges Buddhism over other religions, while at the same time degrading other religions as non-indigenous, colonial newcomers. Simultaneously, the military is building up its Buddhist networks, through sangha donations and ritual celebrations. As MaBaTha experienced restrictions under NLD rule, the military has reinvigorated organizations like the Young Men’s Buddhist Association (YMBA) in order to expand the fields of Buddhist-military interaction. For example, at one YMBA event only two months prior to the coup, the leading MaBaTha monk, Insein Sayadaw, participated in Buddhist functions together with Hlaing. Hlaing also made large donations to Insein Sayadaw in the same period.
For decades, the need for decentralization and a federal structure has been claimed by democracy activists, EAOs, and international actors as the way to peace and democracy. As discussed in detail below, from the EAOs’ perspectives, this new federal state is to be secular, thereby respecting the principles of the 1947 Panglong Agreement. This is also in line with Christian (political) theologies among Christian ethnic minority communities such as the Chin, Kachin, and Karen, which hold a secular state as a prerequisite and a sine qua non in a future federal and democratic state. Rooted in the Christian (often Baptist) theological notion of the separation between religious and political powers, Myanmar’s proponents of Christian political theology dismiss calls for a Buddhist state as extreme, even if they show limited understanding of the historical background and colonial grievances of Buddhists who make such calls.Footnote 12
Demands for a secular state were in fact granted in the 2015 National Ceasefire Agreement (NCA). Given the strong support among Myanmar’s religious majority for Buddhist constitutionalism, it is rather surprising that the NCA did not attract much attention, as it offered a totally new vision on the relationship between religion and state. Section 1(e) of the NCA, which was first signed by the Thein Sein government and eight EAOs on October 15, 2015 (with two more joining on February 13, 2018) sought to “establish a secular state based on the principle of the separation of religion and state in order to avoid abuse of religion for political interests.”Footnote 13 The explicit mention of “separation of religion and state” was novel and went against Article 361 of the Constitution. In 2016, the newly formed NLD government took a new initiative to end decades of armed conflict. This process, called the Union Peace Conference, was mostly known as the “Twenty-first Century Panglong,” an explicit reference to the famous 1947 agreement between the Burmese government under Aung San and the Shan, Kachin, and Chin peoples. While building on the 2015 NCA, the Union Peace Conference was intended to be more inclusive and to transform the military state into a democratic federal state. Again, the question of state regulation of religion resurfaced, if not in public debate, then at least among those involved in the peace process. The “secular state” clause in the 2015 NCA was, however, changed in the Union Accord Part III which was signed on August 21, 2020. Here, clause three reads the purpose as: “To establish a nation where there is no misuse of religion for political purpose and where politics and religion are separated from each other” (Global New Light of Myanmar 2020, 10). This is more in line with the 2008 Constitution, but the reasons behind this semantic shift remain unclear. It will also be a point for new negotiation if a peace process recommences if – or when – the civil war-like situation across the country since 2021 ends. If it does, one of the challenging issues is state regulation of religion at the sub-national level. One proposal that appears to have been accepted as part of the peace process is for states/regions to draft their own constitutions, which has been a key demand since the 1960s (Crouch Reference Crouch2019). How religion will be dealt with at the sub-national level needs to be discussed as demands for religious privileges at regional level are likely.
As previously noted, religious minority communities have, since the late 1940s, worked for a secular constitution. Due to military rule, the political space for debates on the constitutional regulation of religion have been almost non-existent. However, under the NLD government (2016–21) the 2019 constitutional amendment process provided new opportunities for political parties to discuss the issue. “The Union of Myanmar Constitution (2008) Amendment Joint Committee” comprised representatives from the ruling NLD, the military, the USDP, and ethnic minority parties, and by July 2019 they had received thousands of recommendations. However, the NLD, which chaired the committee, confirmed the constitutional recognition of the five religions (Buddhism, Christianity, Islam, Hinduism, and Animism), but did not discuss other religion clauses at all.
By contrast, members from ethnic minority parties suggested changes. For example, the Shan National League for Democracy (SNLD) and the Mon National Party (MNP) suggested deleting conditions of public order, morality, health, and other provisions of the Constitution that limit the right to freedom of religion. They suggested that freedom of religion should be absolute, and no conditions be imposed on it. The Ta’ang (Palaung) National Party called for the inclusion of a subsection to declare that the Union of Myanmar would be a secular state. The SNLD also suggested entirely removing Article 360, which restricts the right to religious freedom as granted in Article 34. The SNLD, together with the Zomi Congress for Democracy (ZCD), proposed to remove Article 361 (granting Buddhism a special position). The ZCD further advocated for deleting Article 362 which names Christianity, Islam, Hinduism, and Animism religions recognized by the state and replacing it with this: “Every citizen has the right to profess any religion of his or her faith.” The SNLD and the Pa’O National Organization (PNO) wanted to oblige the state to assist and protect the religions it recognizes by suggesting removing the phrase “to its utmost” from Section 363, which seems to enable the state to give an excuse in cases of inability to protect and assist the religions.Footnote 14
However, the NLD, the USDP, and the military bloc in parliament did not touch these constitutional sections relating to religion in their recommendations made to the committee, or in draft bills separately submitted. Therefore, questions about the constitutional regulation of religion did not arise when the bills were debated in parliament. Except those few ethnic parties that suggested changes, questions concerning constitutional regulation of religion did not reach the broader public. A notable fact is that the NLD claimed no official stance on religion, although there has been widespread support among NLD members for Buddhist constitutional privileges (Laird Reference Laird2020). The lack of interest shown by the military MPs, the USDP, and the NLD in discussing Buddhist constitutional privileges in parliament, demonstrates the broad consensus at the time among the Bamar Buddhist majority about Buddhist constitutionalism. When minorities have worked to raise this question in formal politics, the Bamar Buddhist political elites – including both the military and the NLD – have chosen to lay the issue to rest.
10.7 Conclusion: Buddhist Constitutionalism in a Military State
Secularism as an ideology of the military state (1962–2011) lost its ground as the military sought to legitimize its rule through Buddhist symbols and structures. This process had already begun in the post-1988 period, but was amplified, I suggest, with the 2008 Constitution and during the years of political liberalization and semi-civilian rule (2011–16, 2016–21). The first period under the rule of the USDP allowed for Buddhist legal activism in the public sphere. In alliance with the USDP and the military, Buddhist pressure groups engaged in Buddhist lawmaking, not with the aim of having religious laws govern the state (as a form of constitutional theocracy), but to protect Buddhism from internal and external threats. This, I contend, is a form of Buddhist statecraft, anchored in constitutional preference for Buddhism. But could the claim be made that Myanmar is a Buddhist state? Seen from a strictly legal perspective, the answer is no. The Constitution neither holds Buddhism as the religion of the state (as in Cambodia), nor does it say anywhere that the head of state must be Buddhist (as in Thailand). Nonetheless, in practice the head of state must be Buddhist, and as the military has refashioned itself as the protector of Buddhism, spreading its protective wings over Buddhist legal activism, it can be argued that Myanmar is a de facto Buddhist state.
Perhaps the most salient and under-appreciated feature of Buddhist constitutionalism in Myanmar is its distinct form of secularism, which I suggest, also privileges Buddhism in ways that are not always acknowledged. In fact, to understand how the military state has shaped Buddhist constitutionalism, one must start with two important observations: first, what might be called “Buddhist secularism” (focused on a strict separation between religion and politics rooted in Buddhist political ideology) has served military interests. This is testified by the amplification of such distinctions in the 2008 Constitution compared to the 1947 and the 1974 Constitutions. Second, the military state has granted limited space for constitutional jurisprudence, for example to clarify what Buddhist constitutionalism might imply. The 2015 “race and religion laws,” which caused massive protests among religious minority communities and human rights groups alike, were never heard at the Constitutional Tribunal (a constitutionally recognized forum for all constitutional disputesFootnote 15), to assess their coherence with rights to religious freedom. Even the Myanmar Commission of Human Rights avoided assessing the case as it was considered too politically sensitive (Frydenlund Reference Frydenlund2017). In both ways, this supposed absence of religion from law and politics has, in fact, advantaged Buddhism.
The practice of limited constitutional jurisprudence in an authoritarian state also suggests that we need to expand the study of Buddhist constitutionalism beyond constitutional law, to include its implicit or unwritten forms. Conceptionally, this bears some affinity with the notion of a “living constitution” like we find in China (Xin He Reference He, Ginsburg and Simpser2014), indicating the importance of context and practice beyond the written text. Such implicit forms point to a larger constitutional complex of policies, laws, courts, and legal practices aimed at acting out the constitutional preference for Buddhism. For example, the Vinicchaya courts are not mentioned in the Constitution, but can be seen as “constitutional statues,” that is, as “sets of foundational, basic laws that structure the relationship between monks and rulers” (Schonthal Reference Schonthal2018, 6). If we broaden the notion of constitutional statues beyond monastic regulatory concerns to include state Buddhist missionary policies, Buddhist civil laws, religious offense legislation, and Buddhist interest litigation, we will be able to capture Buddhist constitutionalism as an extensive form of Buddhist statecraft.
The 2021 military coup brought about a new twist to the state–religion nexus in Myanmar. After the coup, elected members of parliament formed the Committee Representing Pyidaugsu Hluttaw (CRPH), which on April 16, 2021, formed the National Union Government (NUG). The NUG claims to be the only legitimate government of Myanmar and includes representatives from the NLD and ethnic minority parties. It represents a new cross-ethnic and multireligious political force against the military. The military, through its State Administration Council (SAC), declared the shadow government illegal.
Just prior to the formation of the NUG, the CRPH “annulled” the 2008 Constitution and declared a “Federal Democracy Charter.” In relation to the historically contentious position of Buddhist constitutionalism, the charter states that the Federal Union shall practice a political system that has separation between politics and religion. In the English version of the document, the word “secular” is used, while in the Burmese version it reads “a political system not based on religion.” Although not explicitly expressing that the state should be religion-neutral, both the Burmese and the English versions of the text indicate the end of constitutional preferential treatment of Buddhism.Footnote 16 The military for its part declared in May 2021 – through its new puppet organization the YMBA – General Hlaing to be a bodhisattva, thereby confirming the aim of creating a Buddhist-military state. In a televised speech on August 1, 2021, General Hlaing extended emergency rule to August 2023 and declared himself the thirteenth prime minister of Myanmar. In that speech, he explicitly presented SAC rule as pro-Buddhist (in contrast to the previous NLD rule), and importantly, as being in line with the religious clauses of the 2008 Constitution (Global New Light of Myanmar, 2021). Thus, while democratic forces work toward a more inclusive Myanmar, the military will stand as the protector of Buddhist constitutionalism, making it an integral part of military ideology as enshrined in the 2008 Constitution.
The Cambodian Constitution was the product of an internationalized peace process that saw the United Nations Transitional Authority in Cambodia (UNTAC) supervise a short-lived nationwide ceasefire, assume responsibility for state administration, and facilitate the election of a Constituent Assembly. The subsequent promulgation of the Constitution was meant to introduce a triple transition: from war to peace, from Marx to market, and from dictatorship to democracy. The 1993 Constitution also returned Cambodia to a system of constitutional monarchy, largely based on that which had been overthrown in a military-led coup d’état of 1970. The Constitution also reaffirmed the status of Buddhism as the state religion (a status which had already been reintroduced by constitutional reforms in 1989). Beyond this, Cambodia’s new constitutional document also recognized a transition that had already taken place within Cambodia’s Buddhist institutions: namely, the move from what had been a unified sangha to one in which authority was again divided between two major monastic sects, the Mahanikay and the Thammayut. Alongside several other articles that clearly related to Buddhism – the Article 4 reintroduction of the national motto, “Nation Religion King,” the Article 43 assertion that “Buddhism shall be the religion of the State,” and the Article 68 provision of a mandate for the state to “help promote and develop Pāli schools and Buddhist institutes” – another article, Article 13, had major implications for the religion it was ostensibly discussing, relating to the rarefied issue of how to structure the “Council of the Throne.” The article specified that, upon the death of one king, a new king should be declared within seven days by a council that included the Supreme Patriarchs (sanghareachFootnote 1) of the Mahanikay and of the Thammayut, along with seven other members (all elected to offices in the civilian government).Footnote 2
Although the present version differs slightly in its composition, the Council of the Throne established in 1993 can effectively be understood as a reincarnation of an institution that had been formalized in Cambodia’s first formal constitution, initially the product of a joint Franco–Khmer Commission while Cambodia was still under French colonial rule, and eventually promulgated in 1947. In both instances, the Constitution provided for an elected monarchy of sorts, with the mechanism of royal succession being placed primarily under the control of the government rather than the royal family, albeit initially at the behest of King Norodom Sihanouk (Jennar Reference Jennar1995, 35). This chapter traces the contours of Buddhist authority in Cambodia since 1947, as that authority changed, disappeared, and reemerged. It also links these changes to Cambodia’s changing constitutional orders in those years. It argues that the bifurcation of Buddhist authority recognized in the current Constitution is the result of historical and political contingencies that continue to affect the interaction of Buddhism and public law in Cambodia. This account begins from a recognition that while the inclusion of the two Supreme Patriarchs on the reconstituted Council of the Throne was a predictable outcome of the constitution-making process of 1993, it was in fact only possible because of a wholesale restructuring of the architecture of sangha authority that had been initiated less than two years earlier. The presence of two Supreme Patriarchs, representing separately the Mahanikay and Thammayut sects, was made possible by the fact that Cambodia’s Buddhist authorities had themselves effectively been reconstituted and divided into two over the course of 1991 and 1992, shortly after the negotiation of the Paris Peace Accords, which in turn formed the basis of Cambodia’s 1993 Constitution.
While the distinctions between Mahanikay and Thammayut sects are relatively slight in doctrinal terms, the division between the two is both politically and symbolically significant, as this chapter will explain. The arrival of the Thammayut sect in the mid-nineteenth century was historically controversial precisely because it introduced divisions in religious authority between a traditional Mahanikay sect, which remained broadly popular, and a newer lineage that had been imported from Siam and was almost exclusively associated with urban elites and aristocracy. These divisions remained latent throughout the colonial and immediate post-independence eras, and only threatened to surface after the fall of the monarchy in 1970. After the tragedies of the Democratic Kampuchea period, in which the Khmer Rouge entirely deconstructed and destroyed Cambodia’s religious institutions, the country’s Buddhist sangha reemerged slowly, in a hobbled and homogenized form. During the 1980s, the sangha’s membership was tightly restricted, and its structures unified and centralized under the auspices of the historically more prominent Mahanikay sect. Only after the reinstatement of Buddhism as the state religion in 1989, and the return of King Norodom Sihanouk during the negotiation of the Paris Accords, was the Thammayut sect reestablished. The Mahanikay and Thammayut sects, then, continued to be represented separately by their respective Supreme Patriarchs, who have occasionally adopted different stances on social and political issues. However, an additional ambivalence has been introduced since 2006, with the creation of the superordinate position of Great Supreme Patriarch, not to mention the immediate elevation of Samdech Tep Vong – the former head of the unified sangha of the 1980s and the Supreme Patriarch of the Mahanikay sect from 1991 to 2006 – to that position.
As this chapter will demonstrate, the existence of a division within the sangha’s authority in Cambodia, let alone the constitutional recognition of this division, is far from inevitable. Instead, it can be understood as part of a political settlement that sought to end Cambodia’s decades-old civil war, and which has subsequently been superseded to some degree by changes in the political landscape, particularly the declining influence of royalism as a political force in Cambodia (Norén-Nilsson 2016b). To convey the historical significance of this configuration of Buddhist authority in Cambodia, and its constitutional recognition, this chapter will start by providing a brief account of the arrival of the Thammayut sect into Cambodia’s religious and political milieu, and its gradual consolidation in Cambodia over the course of the French colonial rule. The following section will then sketch the contours of the relationship between sangha and state authority after independence from France, following the overthrow of the monarchy, under Khmer Rouge rule, and during the protracted period of civil war thereafter, noting how the postures of these various regimes were reflected in the corresponding Constitutions of 1947, 1972, 1976, and 1979. The short-lived period under the Constitution of the State of Cambodia provided an opening for the reconstitution of sangha institutions which has in turn shaped the current constitutional order. The remainder of the chapter considers these legacies, examining the design of the new constitutional text and highlighting the ways in which the sangha has manifested its (newly redivided) authority in Cambodia since 1993. It ends with a discussion of the creation of the position of Great Supreme Patriarch in 2006, noting its symbolic implications and placing those implications in the broader sociopolitical context of contemporary Cambodia. This chapter will ultimately demonstrate that the structure of sangha authority in Cambodia continues to be the subject of political influence and intervention.
11.2 Of Royal Import: The Thammayut Sect and in Its Historical Context
The Mahanikay sect, which remains the largest monastic order in Cambodia, traces its roots back to the arrival of Theravāda Buddhism in the Angkorian empire (Kent Reference Kent2016, 378). Initially influencing only the ruling elite, as reflected in the fact that many princes are said to have ordained as monks as part of their training for effective leadership, Theravāda Buddhism was increasingly widespread in the general Khmer population by the fourteenth century (Yang Sam Reference Peou, Croissant and Martin1987, 1, 7). As Alexandra Kent explains, “[w]hile Hinduism seems to have been … fairly irrelevant to daily life in the villages, Theravāda Buddhism became woven into the fabric of rural life.” The fact that “young village men could now acquire religious credentials by ordaining as Buddhist monks” allowed for a “socially diverse” sangha to develop in a decentralised manner across the Kingdom (Kent Reference Kent2016, 379). Whether as a result of this shift in social and political ordering, of infighting within the ruling elite, or of external factors, the newly Theravāda Buddhist kingdom soon went into a prolonged decline (known as the “middle period” in Cambodian historiography). This was catalyzed by the sacking first of Angkor, and then of the short-lived alternative capital in Longvek. As a result, while the center of the Kingdom’s (diminishing) political authority moved southeast to Udong (near the current capital of Phnom Penh), the center of its Buddhist influence moved to Ayutthaya, and eventually to Bangkok. In the words of the historian, Alain Forest, “[m]onks destined to become the most respected Venerables of the Cambodian sangha came to the monasteries of these two capitals,” while from a religious perspective Udong became “little more than an extension of its Siamese counterparts” (2008, 23). Nevertheless, historical accounts of the early nineteenth century court in Phnom Penh speak of “a fairly rigid hierarchy” in which the Buddhist patriarchs sat just below the royal family (Harris Reference Forest, Kent and Chandler2005, 51).
It is in this context that the teachings, practices, and order of the Thammayut sect were established in Cambodia in 1853. Arriving “through the importation of courtly Buddhist practice and thought from Thailand,” Cambodia’s Thammayut fraternity was derived from that established by Mongkut (later, King Rama IV) two decades earlier (Kent Reference Kent2008, 84). Concerned primarily with monastic practice, which Mongkut perceived to have erred from the word of the Vinaya, the Thammayut movement can be understood as an attempt to purify Buddhist practice by returning to a more direct and strict reading of Pāli scripture. Thammayut texts and teachings, to which much of the more mystical Buddhist practices in Cambodia at the time would have been antithetical, were initially introduced to Cambodia under King Ang Duong, who acquired eighty bundles of texts, and also sent both of his sons (Norodom and Sisowath) to ordain with the fraternity (Peng, Kong & Menzel 2016, 395). However, the commitment of the Cambodian crown to Thammayut teaching was made explicit when Ang Duong’s successor – King Norodom – sponsored the construction of a Thammayut temple next to the royal palace as the Cambodian capital moved to Phnom Penh in 1867 (Edwards Reference Edwards2007, 103–9). That temple, Wat Botum Vadey, remains the center of Thammayut practice in Cambodia today.
Yet, Thammayut teachings appear to have remained the preserve of the aristocracy and urban elite in Cambodia, while the unreformed majority – which came to be known as the Mahanikay – prevailed across the rest of Cambodian society. While royal patronage was central to its ability to gain a foothold in Phnom Penh, the Thammayut initially also benefited from the support of colonial authorities. As Penny Edwards explains, French “manipulation of strategic alliances with the Thammayut and Mahanikay would fundamentally alter the balance of power between the two sects” (Edwards Reference Edwards2007, 110). Initially sympathetic to the rationalism and modernist ambitions of the reformist movement, colonial authorities later became suspicious of the extent to which Thammayut leaders continued to be influenced by developments, and allied to institutions, in Siam. As the colonial administration’s engagement with Buddhism developed, therefore, French allegiances shifted towards the Mahanikay. By giving preferential opportunities for further religious study abroad, Edwards notes, “French scholars and colonial institutes stymied the monopolization of Cambodge’s ‘national’ religion, Buddhism, by a sect they identified as Siamese in origin and orientation” (Edwards Reference Edwards2007, 112).Footnote 3 Ultimately, the Thammayut would establish itself in Cambodia, but only in a limited way: a reality which is underlined by the fact that, by the turn of the twentieth century, the Mahanikay made up 97 percent of all temples nationwide, although this number dropped as low as 85 percent in areas around the capital (Harris Reference Forest, Kent and Chandler2005, 111). The Thammayut sect represented only a small fraction of Cambodia’s monastic community at this time, but it had a concentrated influence close to the center of political power.
The Thammayut’s consolidation in Cambodia occurred contemporaneously with the formalization of Buddhist authority through an attempt at state-led centralization. This process began in 1880, when King Norodom – apparently inspired by Mongkut’s creation of a national sangha in Thailand – ordered the restructuring of the sangha, resulting in the appointment of the most senior Mahanikay monk – Venerable Nil Tieng – to the apex position of Supreme Patriarch, and the elevation of the most senior Thammayut monk – Samdech Preah Maha Sokhoun Pan – to the second highest position (Harris Reference Forest, Kent and Chandler2005, 109). These appointments occurred within a broader milieu that, according to French colonial functionary and author of the 1899 book Le Buddhisme au Cambodge, Adhémard Leclère, contained “a multitude of sanghas” (Leclère 1899).
While recognizing Mahanikay ascendency, this formalized hierarchy nonetheless recognized the coexistence within it of two distinct monastic orders, each with their own hierarchies and leadership. This new status quo was soon refined by French colonial authorities, as they began just two decades later to formalize sangha authority in secular law. Specifically, the authorities of the French Protectorate in Cambodia introduced procedures for the state administration’s registration of temples in 1904, and for its registration of monks and novices in 1916, before restructuring the sangha nationwide and bringing it under state authority in 1919. In February and September of 1943, meanwhile, the complete restructuring of the sangha hierarchy was ordered by royal decrees that gave the Supreme Patriarchs of the Mahanikay and Thammayut greater independence to appoint chief monks at the provincial level, but still made these appointments subject to approval by the king and the Ministry of Cults and Religious Affairs. Ultimately, however, this formal recognition of two distinct monastic fraternities within a single, unified sangha authority belied a social undercurrent of increasing tension, in which both Mahanikay and Thammayut authorities had sought to obstruct one another’s activities.Footnote 4 The divisiveness of this situation was most forcefully articulated in the anti-colonial publication Nagaravatta, which cited the division as a potential cause for the decline of Buddhism in the country and called for the eradication of divisions within the sangha (albeit without success) under the slogan of “One Nation, One Religion” (Edwards Reference Edwards2007, 208). This phrase would reemerge in the 1980s, as will be discussed shortly.
Cambodia’s first formal Constitution was promulgated by King Norodom Sihanouk in 1947, after a drafting process initially led by a joint Franco–Khmer Commission but then taken up by an elected Constituent Assembly. The process eventually produced a draft which largely followed the contours of that of the French Fourth Republic (Jennar Reference Jennar1995, 35–36). One notable change from the first Franco–Khmer Commission draft, which was introduced at the request of King Sihanouk, however, was the introduction of a system of elected (rather than hereditary) monarchy (Jennar Reference Jennar1995, 35–36). This, in turn, demanded the creation of a Crown Council which would lead the selection process; a Council that was chaired by the President of the Family Council of the Royal Family, but also included the President of the National Assembly, the President of the Council of the Kingdom, the President of the Council of Ministers, and the Supreme Patriarchs of both the Mahanikay and Thammayut monastic orders (Article 28). Beyond the inclusion of the two Supreme Patriarchs on the Crown Council, reference to Buddhism, or religion more generally, can be found in Article 8, guaranteeing freedom of religion, and recognizing Buddhism as “the religion of the state,” and Article 49, which explicitly excludes members of the sangha from the principle of universal suffrage. The 1947 Constitution also refers to the King as dhammika mahareach (“great righteous king”), implying that he was the protector and patron of Buddhism, and the embodiment of rightful rule according to Buddhist principles.
The period which followed full independence from France – which was finally negotiated by Sihanouk in 1953 – is frequently referred to in glowing terms. In his book, Khmer Buddhism and Politics from 1954 to 1984, for example, Yang Sam claims that “this time was probably the peak period of modern Khmer Buddhism” (1987, 2). The Buddhist credentials of Sihanouk’s post-independence rule (first as king, then as president, and later in a hybrid prince-and-head-of-state role) are discussed at length elsewhere (Harris Reference Forest, Kent and Chandler2005, 144–56). However, it is worth noting that, in the context of general growth in the size of the Buddhist sangha, this period actually saw a relative decline in the size and influence of the Thammayut sect. From a total of 202 monasteries at the moment of independence, there were only 139 still operating by 1970, while the number of Mahanikay temples increased from 2,461 to 3,369 in the same period (Yang Sam Reference Peou, Croissant and Martin1987, 17). This decline in the Thammayut sect is attributed by Yang Sam to a generalized unwillingness to abandon ritual practices (typically associated with Brahmanical and animist traditions), a reluctance amongst rural Cambodians to send their children to ordain in Thammayut temples which tended to be concentrated around the capital of Phnom Penh, and the emergence of a dynamic reformist movement within the Mahanikay. As a result, there appears to have been an increasingly widely felt sentiment that the Thammayut order enhanced division and disharmony in Cambodia’s monastic and lay community, because it “emphasized the division of social classes between the royalty, the rich and the poor” (Yang Sam Reference Peou, Croissant and Martin1987, 17). While this divisiveness is frequently remarked upon by historical accounts of the period, it did not manifest in open confrontations within the sangha.
Serious divisions within the sangha became increasingly evident as, in 1970, Cambodia descended into civil war. The fall of the Kingdom of Cambodia, courtesy of parliament’s dismissal of Sihanouk as Head of State, and the seizing of power by military General Lon Nol, had the support of many notable figures within the sangha, particularly reformist elements within the Mahanikay sect. Venerable Khieu Chum, for example, gained notoriety for his critique of the sangha’s dependence on monarchy, which he argued the Buddha himself had rejected, and after the coup became a prominent supporter of republicanism. Khieu Chum’s vision of a republican but nonetheless Buddhist Cambodia – which he articulated with increasing clarity after 1970 (Harris 2008, 98) – would also inspire later political leaders, such as Heng Samrin during the early 1980s (Yang Sam Reference Peou, Croissant and Martin1987, 83). Meanwhile, only private appeals from then Mahanikay Supreme Patriarch, Huot Tat, prevented a significant number of Thammayut monks from embarking on a march to protest the overthrow of Sihanouk and the imminent dissolution of the monarchy.
The Khmer Republic – which was eventually formalized in the 1972 Constitution – was far from secular, let alone anticlerical. Lon Nol himself described the ongoing civil war, against the communist insurrection led by the Khmer Rouge, as “a religious war” against a “thmil” (devil/atheist) enemy (Harris Reference Forest, Kent and Chandler2005, 174). Article 2 of the Constitution of the Khmer Republic also recognized Buddhism as the state religion. The removal of the monarchy meant that the Crown Council had been dispensed with, thereby removing previous references to the leaders of the Thammayut and Mahanikay sects in the new charter. Nevertheless, Lon Nol had already reassured both leaders in the months after the coup that: “the present radical change of political rule is not meant to be prejudicial to Buddhism, which remains the state religion as it has up till now” (Harris Reference Harris2012, 16).
The subsequent rise of the Khmer Rouge was a disaster for Buddhism. Though a number of Buddhist monks appear to have been involved in the Indochinese Communist Party and then the Communist Party of Kampuchea in earlier years, the Khmer Rouge’s four years of rule under the Democratic Kampuchea regime were characterized by the complete destruction of religious institutions, the systematic elimination of Buddhist leadership, and the generalized defrocking and mistreatment of monks from urban centers. Inevitably, the Constitution of Democratic Kampuchea, promulgated in 1975, did not recognize a state religion, and although it did purport to recognize the right to worship in Article 20, it simultaneously forbade the worship of any “reactionary religion which is detrimental to Democratic Cambodia and the Cambodian people.” This latter prohibition appears to have been interpreted so broadly as to prohibit the practice of any religion, other than the animism of highland communities. Whether as a result of an intentional policy of eradication or not, less than 100 – and by some estimates only 12 – Cambodian monks survived the Democratic Kampuchea period, meaning that some 80,000 monks had been lost over the course of a period in which almost a quarter of the population died from either exhaustion, starvation, disease, torture or execution (Yang Sam Reference Peou, Croissant and Martin1987, 81; Kent Reference Kent2016, 383).
11.3 Reconstructing the Sangha
The fall of Democratic Kampuchea, then, might have provided an opportunity to rebuild Buddhist institutions in the wake of the destruction wrought by Khmer Rouge rule. Though the Vietnamese-installed People’s Republic of Kampuchea (PRK) was ideologically opposed to the promotion of Buddhism, it nevertheless “allowed the restoration of temples and a restricted revival of the sangha” in order to accrue some much-needed legitimacy (Kent Reference Kent2008, 383). Strict limits were introduced on the expansion of the sangha, preventing anyone under the age of fifty from ordaining, and limiting to four the number of monks residing at any particular temple (Marston 2009). Meanwhile, historical accounts of the period describe a situation in which Buddhism was made wholly subservient to the authority of the party (the National United Front Salvation of Kampuchea, herein the Front) and the PRK state. As John Marston explains, the restored sangha “was considered a mass organization structurally parallel to labor unions and the women’s association,” such that newly appointed Buddhist leaders (officially ordained at a ceremony in 1975) were nonetheless “under the administrative direction of Front officials.” Temple (wat) committees that were primarily constituted by laypeople exercised “great power over the direction of the wat,” ensuring some portion of donations would be directed to broader community initiatives (Marston 2009, 225–26). As such, Buddhist monks were treated as “state employees” and were expected to sustain themselves by growing vegetables on temple land. The unique reality of this status is similarly reflected in the fact that monks were formally enfranchised and allowed to run for public office for the first time by way of Article 31 of the 1979 Constitution of the People’s Republic of Kampuchea.Footnote 5
Meanwhile, Buddhist authority was reconstituted in the form a single, unified sangha (the “Front order,” or braḥ saṅgh raṇasirsa). After being one of seven people to take part in the first official ordination ceremony, which was overseen by a group of Theravāda monks brought in from Vietnam, Tep Vong was soon selected to sit at the apex of the new monastic order, as well as to sit as the vice president of the National Assembly. Although this privileged political position could be perceived as a recognition of the status of Buddhist authority, it is better understood – particularly from a historical perspective that recognizes the conventional separation between Buddhist and state authority – as an attempt to ensure the subservience of the sangha hierarchy to the state. From his position in the National Assembly, for example, Tep Vong is reported to have offered justifications for state-led political violence against domestic political dissent, which he sought to base in Buddhist doctrine.
Meanwhile, the sangha over which Tep Vong now presided as President (pradhān) – rather than Supreme Patriarch (sanghareach), with its royal connotations – was officially one without sects or divisions. “Now we make no difference between the two orders; there is at present only one sangha,” Tep Vong is reported to have told a Vietnamese reporter. Another senior monk – Oum Soum – later remarked that “our monks are neither Mahanikay nor Thammayut but are Nationalist monks” (Yang Sam Reference Peou, Croissant and Martin1987, 86). However, some accounts indicate that in reality the teaching and practice of the sangha at the time leaned heavily towards Mahanikay rather than Thammayut conventions in all relevant respects. Writing in 1987, for example, Yang Sam explains that the “overall practices [of the unified braḥ saṅgh raṇasirsa] are those of the Mahanikay order” (1987, 87). In response, there appear to have been some attempts to reestablish a Thammayut monastic order, which were suppressed on the basis that any Buddhist institutions outside of the officially recognized order were illegal. That these initiatives appear to have been so swiftly and categorically dealt with by Front or PRK authorities suggests that there was a particular sensitivity to any potential for an alternative locus of Buddhist authority to develop, given that this could provide a challenge to the legitimacy of the braḥ saṅgh raṇasirsa. By contrast, the establishment of unofficial wats, which circumvented the rigid registration restrictions imposed by the state, were relatively commonplace at this time (Bektimirova Reference Bektimirova2002).
11.4 The Return of a Divided Sangha
The most recent reconstitution of Buddhist authority in Cambodia was ultimately precipitated by global events. The Soviet policy of perestroika, which saw the reduction of aid to Vietnam as part of the gradual winding-down of the Cold War, ultimately forced Hanoi to reconsider its support for the PRK regime. Plans for the first withdrawal of Vietnamese troops from Cambodia were announced in May 1988 (Cima Reference Cima1989). This, in turn, prompted Hun Sen, who had become prime minister of the PRK three years prior, to undertake a series of fundamental reforms, starting with the almost immediate lifting of limits on ordination to the sangha and culminating in the promulgation of the Constitution of the State of Cambodia (SoC) in 1989. While the Constitution of the SoC bore many similarities to that which had preceded it, it also contained a number of significant changes. Alongside the reintroduction of private property and the shift away from a planned economy, for instance, the SoC Constitution in Article 6 reinstated Buddhism as the state religion and removed provisions of Article 31 which had previously enfranchised Buddhist monks. The new constitutional recognition of Buddhism’s special status was accompanied by a public apology from Hun Sen for the “mistakes” made toward religion over the previous decade of the Front’s rule (Harris Reference Forest, Kent and Chandler2005, 200).
While significant in themselves, the reforms of the State of Cambodia era must also be understood as symbolic moves designed to further open up the opportunity for a comprehensive peace agreement to end the country’s ongoing civil war.Footnote 6 Negotiations toward this settlement had begun by the middle of 1988, at the First Jakarta Informal Meeting, and culminated in the signing of the Paris Peace Agreements on October 23, 1991. In this context, steps such as the constitutional recognition in 1989 of Buddhism as the state religion must be understood as attempts to reassure other warring parties and the international community. As John Marston explains: “the reforms represented the country as amenable to basic changes of the kind that would make a settlement with resistance factions feasible” (2009, 226).
Significant structural changes to the sangha, meanwhile, began apace toward the end of 1991, after the signing of the Paris Peace Accords enabled the return of Norordom Sihanouk in November of that year. The braḥ saṅgh raṇasirsa was promptly dissolved, and the returning former king appears to have immediately (and unofficially) resumed a role as patron of the sangha. As such, Sihanouk awarded Tep Vong the royally imbued title of Sanghareach, and concurrently applied the same title to the prominent, Paris-based Thammayut monk, Bou Kry, whose temple had accommodated Sihanouk’s son (Prince Sihamoni) when he ordained as a monk almost a decade earlier. By February 1992, the separate monastic orders of Mahanikay and Thammayut sects had been fully reconstituted. The two Supreme Patriarchs, Tep Vong and Bou Kry, respectively, sat at the apex of the two newly reconstituted hierarchies, with power to appoint Chief Monks at province, municipality, district, and village level via preah sangha prakas (sangha decrees), with the cosignature of the Minister for Cults and Religious Affairs (Peng, Kong & Menzel 2016, 411). Though there is no reference to the sangha or to Buddhism in the Accords,Footnote 7 it seems likely that this reconstitution of the sangha, along lines closely resembling that which had existed prior to the fall of the Kingdom of Cambodia in 1970, was at least an implicit – if not explicitly agreed but unwritten – aspect of the broader political settlement.
Cambodia’s peace-time state authority, then, was reconstituted after that of its religious authorities. In an eighteen-month process beginning in March 1992, the United Nations Transitional Authority in Cambodia assumed responsibility for the functions of the Cambodian state, sought to oversee the disarmament of the warring factions, and administered elections in May 1993. Ahead of that election, both samdech Tep Vong and samdech Bou Kry unsuccessfully sought to secure an exception to the universal franchise, so as to prevent monks from both monastic orders being allowed to vote for what would be the first time in the country’s history (Larsson Reference Khuy2015). The denial of this request by the head of the UNTAC mission, Yasushi Akashi, ultimately set a precedent whereby monks have been formally included in the franchise ever since, much to the chagrin of the two patriarchs. Nevertheless, the Constituent Assembly formed by the 1993 elections, in which the royalist FUNCINPEC won a narrow majority, went on to draft a constitution (promulgated on September 24, 1993) which restored Cambodia to the status of constitutional monarchy, and otherwise synthesized key features of the amended 1947 Constitution of the Kingdom of Cambodia and the 1989 Constitution of the State of Cambodia: Article 4 of the Constitution restored the national motto of “Nation, Religion, King”; Article 43 reaffirmed the special status of Buddhism as the state religion; and Article 68 provided the state with a duty to “develop Pāli schools and Buddhist institutes.” Along with the reinstatement of the monarchy, meanwhile, in Article 13 came the reforming of the Council of the Throne, wherein the Supreme Patriarchs of the Mahanikay and Thammayut were joined by the president and first and second vice presidents of the National Assembly, the prime minister, and (after the formation of the Upper House in 1999) by the president and first and second vice presidents of the Senate.
Most scholars view the UNTAC experiment and its legacies as having been a heavily qualified success, particularly with regard to its purported democracy-building mandate. A major reason for this was that Cambodia’s multi-party political settlement could not be reconciled with an institutional context that otherwise remained overwhelmingly dominated by the Cambodian People’s Party (herein, CPP).Footnote 8 Many of these dynamics were paralleled in the reconstituted sangha. This is most clearly embodied by Tep Vong, who remained at the top of the sangha hierarchy (as Supreme Patriarch of the Mahanikay sect) after 1993, despite his close association with the PRK regime. This continuity has, according to Alexandra Kent, meant that Tep Vong – and much of the hierarchy of the post-1993 Cambodian sangha more generally – “continues to be popularly viewed as the religious mouthpiece of a Vietnamese-friendly [CPP] government,” in spite of the formal independence that has been afforded to Buddhist institutions (Kent Reference Kent2008, 85). In the newly reestablished Thammayut order, meanwhile, positions of significant influence were actually held by other CPP-affiliated, Mahanikay-educated monks. The position immediately below Bou Kry, Ian Harris notes, was filled by the Oum Soum, who had himself been a prominent figure in the braḥ saṅgh raṇasirsa of the 1980s (Harris Reference Forest, Kent and Chandler2005, 214–15). Similarly, the lay chairman of the Pagoda Council at Wat Botum Vadey – the temple built by King Norodom as the center of the Thammayut sect and, after 1992, the home of Bou KryFootnote 9 – was none other than the father of Hun Sen (Harris Reference Forest, Kent and Chandler2005, 215). According to Harris, the positioning of such figures can be understood as an attempt to surveil the Thammayut order, which was likely to have been viewed with suspicion by the CPP even after the uneasy and fragile peace had been established. In fact, Harris states that “it could be argued that they are well placed to feed intelligence to the relevant authorities” (Harris Reference Forest, Kent and Chandler2005, 214–15). While appointments within each order were ostensibly the prerogative of their respective Sanghareach, there are indications that these decisions were subject to political influence and intervention at the local level. Alexandra Kent, for example, reports data showing that “head monks are not always elected by the monks but may instead be instated through the support of local politically supported officials” (Kent Reference Kent2008, 89). Though formally reconstituted as two distinct orders, and to a large extent formally independent from the state, the order of the Thammayut was – from 1992 – largely in a process of transition which reflected the broader political change that was ongoing in Cambodia.
11.5 Post-1993 Practice
Despite their new configuration and the relative autonomy it appeared to confer, the Thammayut and Mahanikay sects were largely unified in the public positions on significant social and political questions. One issue where daylight was visible between the two, however, was in response to the HIV/AIDS epidemic that gathered momentum after the departure of UNTAC (Ledgerwood Reference Ledgerwood1994). The difference in posture between the Supreme Patriarchs of the two orders came to a head in 2000, around a conference organized for Buddhist monks by the National AIDS Authority, with significant support from international donors. Specifically, Tep Vong made only a brief appearance at the conference, and later explained that his reticence reflected a more fundamental skepticism about the involvement of monks in HIV/AIDS education or support to people with HIV/AIDS. Suggesting that the extent of the epidemic had been inflated by the CPP’s political opponents in order to discredit the ruling party, Tep Vong argued that the official figure of 170,000 was incorrect and that only around 30,000 people had contracted HIV (Post Staff Reference Harris2000). Meanwhile, the Supreme Patriarch argued, the holding of workshops brought unwanted attention, since “the more people who attend the meeting, the more people will tell the world Cambodia is not good” (Post Staff Reference Harris2000). Rather, Tep Vong appears to have advocated a more hardline approach, suggesting the government should first crack down on vice in the country before involving monks in awareness-raising activities, and ultimately suggested the sangha’s stance should be to withhold support, since those who were suffering were only being punished for their immorality: a kind of karmic justice. “If we help sick people, then we will only encourage them not to be afraid of catching the virus,” Tep Vong also explained “[i]f you support the people with AIDS then we openly broadcast to the world we support AIDS” (Post Staff Reference Harris2000).
The Supreme Patriarch’s stance was not shared throughout the Mahanikay sect, of which he was the premier authority, however, as many monks were profoundly involved in the fight against HIV/AIDS across the country, and in offering care to people with AIDS. Neither was the stance shared by the Thammayut Supreme Patriarch. In contrast to Tep Vong, Bou Kry was more conciliatory towards those suffering from the disease and largely supportive of monks’ engagement with the HIV/AIDS issue. “The subject should be mixed with Buddhist sermons – and every monk has to do that,” the Thammayut Supreme Patriarch told the English-language Phnom Penh Post newspaper, before explicitly dismissing the idea of suppression as a strategy and advocating education as “the best way.” Finally, Bou Kry called on monks “to give moral support to the sick [with AIDS] so they can die peacefully – even though they have committed a bad thing” (Post Staff Reference Harris2000). On what was an increasingly politicized societal issue, in other words, the division of the sangha between Mahanikay and Thammayut orders – as well as the heterogeneity of practice that was possible within the former – allowed for Cambodia’s Buddhist monks to be prominently involved in the dissemination of information about HIV/AIDS, and in the provision of important services to its sufferers at a time when state capacity was still profoundly limited.
Simultaneously, tensions between the two orders threatened to surface over a more overtly political issue: the deaths of sixteen supporters of the opposition politician Sam Rainsy, who were killed by a grenade attack in the public park immediately outside of Wat Botum Vadey in March 1997. Sam Rainsy, it seems, had already established a relationship with the Thammayut Supreme Patriarch, who resided at the Wat Botum Vadey temple at the time: both had been part of the Cambodian diaspora in France during the 1980s, at which point Bou Kry is rumored to have told worshipers to donate to the FUNCINPEC party, with whom Sam Rainsy was affiliated at the time (Harris Reference Forest, Kent and Chandler2005, 214). Meanwhile, Sam Rainsy had himself spent three weeks ordained as a monk at the temple just a year prior to the attack. Although Bou Kry steered clear of any comment at the time of the killings, he provided some measured remarks to journalists three years later, as supporters of Sam Rainsy sought to erect a stupa in the park to memorialize the dead. Aware that three previous such memorials had been removed or destroyed by authorities, Bou Kry told journalists that he was “very concerned” about the fate of the fourth iteration, noting that the stupa contained a Buddha statue and that any damage done to the statue “would be like they were attacking the Buddhist religion” (O’Connell and Saroeun Reference O’connell and Saroeun2000). The Supreme Patriarch’s sympathy, however, may have been made clearer when the stupa was temporarily rehoused within the walls of Wat Botum Vadey. In the context of a profoundly polarized political context, and in light of Bou Kry’s general opposition to Buddhist figures engaging in politics, such support (muted though it was) can be understood as a politically symbolic gesture.
The two Supreme Patriarchs have also been engaged in political matters when called upon to participate in the deliberations of the Council of the Throne, confirming King Sihamoni’s ascension in 2004. This process was complicated by the fact that Sihamoni was to be selected as king in the wake of his father’s abdication of the throne, an event for which there was no provision made in the constitutional articles relating to royal succession. Sihanouk’s abdication came in the midst of a post-election political crisis (Peou 2006). As with the elections five years earlier (Khuy 1998), the 2003 elections had seen the CPP win a majority of seats in the National Assembly but fall short of the super-majority needed to form a government. Initially the CPP failed in attempts to form a coalition with opposition parties who disputed the results of the election. Provided a “supreme role as arbitrator to ensure the regular execution of public powers” by Article 9 of the Constitution, Sihanouk’s frustrations with the dysfunction of Cambodia’s political system and the inability of the parties to reach a compromise, which he described as a “dishonorable deadlock” (Yun 2003), came to the fore as he repeatedly threatened to abdicate the throne (Yun Reference Leung2004). By contrast, Bou Kry appears not to have intervened to stop Sihanouk from abdicating. Instead, shortly after King Sihanouk had formally issued his notice of abdication, Bou Kry publicly stated his support for Norodom Sihamoni to assume the throne. “Prince Sihamoni deserves the position because it belongs to him,” the Thammayut Supreme Patriarch explained, noting that the prince – who had previously ordained as a Thammayut monk at a temple in France in 1981, where he came under Bou Kry’s personal guidance – had immediately sought his personal advice after hearing of the abdication (Lor & Leung 2021). The contrast between these two positions – Tep Vong’s attempt to persuade Sihanouk to remain on the throne and Bou Kry’s close involvement in preparing Sihamoni to succeed his father, which he did in October 2004 – hint at the ongoing closeness between the royal family and the Thammayut sect, if not also the Mahanikay Patriarch’s view of the throne as a symbol of political stability, compromise and, ultimately, legitimacy for the ruling party (Lawrence Reference Lawrence2020).
A significant alteration to the configuration of the sangha hierarchies was made in 2006, though this was not reflected in any change in the composition of the Council of the Throne, let alone the text of the Constitution more generally. Specifically, a new position of Great Supreme Patriarch was established by royal decree (No. NS/RKT/0506/207, 2006), with Tep Vong being appointed, and his previous position as Supreme Patriarch of the Mahanikay being filled by his former deputy, Nuon Nget (Royal Decree No. PS/RKT/0406/200, 2006). As such, a figure who had until that point been the Supreme Patriarch of the Mahanikay, and who had himself presided over the unified braḥ saṅgh raṇasirsa of the 1980s, became the ultimate authority within the Cambodian sangha once again. Tep Vong became the first Supreme Patriarch to represent both the Mahanikay and Thammayut orders of the Cambodian sangha since Nil Teang was appointed to a similar position in 1859. The move, which was signed by the recently crowned King Sihamoni, was immediately criticized by opponents and dissidents. One former monk, Chin Channa, who himself claimed to have been “hounded out” of the sangha due to his interest in politics, described the change at the time as “politically made only to undermine and downgrade the Dhammayuth [sic] and put it under the influence of the CPP,” and noted that the move had been made possible by a political context in which “royalists are declining.” Striking a similar tone to that of Chin Channa, opposition political leader Sam Rainsy similarly argued that “[t]he best way to maintain peace as it is today, is to please keep it [the structure of sangha authority] the same.” This call went unheeded, however, and a year later a royalist-affiliated newspaper,Footnote 10 Khmer Amatak News, was threatened with closure after it published a story praising Thammayut Supreme Patriarch Bou Kry for his ability to rise above politics and accusing Tep Vong of using his position to act as “the CPP’s spokesman” (Yun Reference Samean2007).Footnote 11
Despite having won enough seats in the National Assembly in the 2003 elections to avert a super-majority for the CPP, the royalist political movement was clearly on the wane. This decline was not helped by the abdication (and withdrawal from political life) of Sihanouk, with whom the vast majority of royalist political prestige continued to adhere (Norén-Nilsson 2016a, 2016b). Ultimately, the reality of this decline was borne out two years later, when the royalist opposition parties (namely, FUNCINPEC and the Norodom Ranariddh Party that splintered from it) were resoundingly defeated in the 2008 elections.Footnote 12 The return, recognition, and then relative relegation of the Thammayut vis-à-vis the more popular Mahanikay sect can be understood to reflect the plight of royalism as a political force, and even the direction of Cambodia’s post-conflict political settlement more generally. In other words, both the reintroduction in 1992 of the Thammayut order to Cambodia and the subsequent elevation of a Mahanikay Supreme Patriarch (and particularly Tep Vong) to a position of ascendency over his Thammayut counterpart less than fifteen years later are symptomatic of changes in the post-conflict political settlement in Cambodia. Just as the former development reflected the progress of a peace process in which the ruling CPP was compelled to compromise with royalist political and military opponents led by Sihanouk, so the latter can be understood as a consequence of the extent to which that compromise had subsequently been superseded by political developments, and thus abandoned.
The constitution of Buddhist authority, and of the two monastic orders that make up contemporary Cambodia’s sangha, then, has historically been subject to broader political shifts in Cambodian society. That trend continues to hold into the present day. Since its royally sanctioned introduction to Cambodia in 1853, members of the Thammayut sect have remained a minority within Cambodia’s sangha community. Initially encouraged by colonial authorities who identified with the order’s commitment to rationalization, the Thammayut fell out of favor with the French as suspicion grew around its connection to Thailand. Royal patronage of the Thammayut remained a constant, however. As such, from Cambodia’s first written constitution, promulgated in 1947, the place of the Thammayut has largely run alongside the place of the monarchy. After being accorded equivalent status from 1947, and through the immediate post-independence era dominated by Norodom Sihanouk, the division of authority within the sangha was maintained by the Khmer Republic, albeit without the constitutional recognition that came with the existence of a Crown Council. While the Cambodian sangha then suffered almost universally at the hands of the Khmer Rouge, it was Thammayut authority that was most notably sidelined during the initial (limited) rebirth of Buddhist institutions in the 1980s, as the People’s Republic of Kampuchea recognized only a homogenous, unified sangha that officially knew no sectarian difference but, in reality, largely favored Mahanikay practice. The return of a divided sangha, intriguingly, was a religious representation of what was supposed to be a moment of increasing unity thereafter, as the peace negotiations of 1988–91 were paralleled by increased religious freedom and, eventually, the reconstitution of separate Mahanikay and Thammayut orders.
From one vantage point, Cambodia’s contemporary configuration of Buddhist authority appears quite similar to that which existed at the turn of the twentieth century. At that time, a Great Supreme Patriarch sat alone at the apex of the hierarchy of sangha authority, with separate sect-specific Supreme Patriarchs for the Mahanikay and Thammayut immediately beneath him. In this role, Tep Vong appears able to exert a palpable influence over questions of monastic discipline and practice, as well as to claim a singular symbolic significance as the primary representative of Cambodia’s state religion. Yet, the text of the Constitution, and particularly the provisions of Article 13 on the Council of the Throne, continue to evoke a relative equivalence between the two sects by including only the two Supreme Patriarchs. This ambivalence may reflect the particular significance of the Thammayut to the institution of the monarchy, meaning that the Thammayut leadership is permitted greater prominence in questions relating to the crown than in other matters. Alternatively, it may simply be the result of a reluctance to change the constitutional text to acknowledge what may yet turn out to be a temporary status quo. It is not clear, in other words, whether the position of Great Supreme Patriarch will be a permanent feature in the configuration of Cambodia’s sangha hierarchy, or whether it is considered to inhere with the particular person of Tep Vong. What is clear, however, is that Tep Vong’s current preeminence, and his ascendency to the position of Great Supreme Patriarch, along with any attempt to maintain that position whenever Tep Vong’s occupancy to it comes to an end, is a reflection of political contingencies in Cambodian society, particularly the place of royalism as a political movement and the monarchy as a social institution in Cambodia.