Legal, Constitutional & Customary Provisions to Safeguard the Buddha Sasana & Sri Lanka’s Sovereignty

 

 

Sri Lanka’s ancient heritage and sovereignty are firmly enshrined and protected by a comprehensive legal framework—in its Constitution, customary Buddhist jurisprudence, Penal Code, and critical legislative enactments. Recent secret MoUs, pacts, and deals with foreign governments and corporations undermine this sacred legal order, risking irreversible damage to the Buddha Sasana and the unitary, sovereign character of the Sri Lankan Republic.

 

1. The Constitution of Sri Lanka: Supreme Guardian of Sovereignty and the Buddha Sasana

 

The Constitution of Sri Lanka is not merely a legal document; it is a civilizational charter that anchors the nation’s sovereignty, spiritual heritage, and cultural identity. It gives foremost constitutional recognition to Buddhism and the Buddha Sasana, making it the legal and moral foundation of governance.

 

Preamble – Svasti Invocation – “Svasti: May the Noble Triple Gem bless you”

 

This invocation of the Triple Gem (Buddha, Dhamma, Sangha) is not ceremonial. It signifies that the entire constitutional order is rooted in the spiritual heritage of the Buddha Sasana.

 

The presence of “Svasti” at the beginning of the Constitution:

1. Acknowledges theBuddha Sasana as Sri Lanka’s moral compass and civilizational anchor.
2. Confirms that all state action must be in harmony with the ethical and spiritual principles of Buddhism.
3. Legally and morally obliges all state institutions toact within this sacred framework—from legislation to international treaties.
4. Acts as adoctrinal preface, binding the state to protect Buddhism not only through Article 9 but throughout constitutional interpretation and governance.

 

This reconfirms Sri Lanka is not a secular state, but one spiritually rooted in the Buddha Sasana, where sovereignty and statecraft must align with Dhamma.

 

Article 9 – Foremost Place to Buddhism:

“The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana.”

Far from being symbolic, this places a binding duty on the entire public service—from the President and Cabinet downwards—to uphold the Buddha Sasana as the foundation of the nation’s identity.

 

Articles 2, 3, 4 – Sovereignty & Unitary Character

• Article 2: Declares Sri Lanka aUnitary State
• Article 3: Sovereignty resideswith the People
• Article 4: Sovereignty exercised by Parliament, President, and Courts

 

Any foreign pact signed without parliamentary approval or public consent is void and unconstitutional.

 

Article 16 – Continuity of Customary Law

Protects existing laws, including Buddhist customary law, temple land governance, and religious endowments.

 

Article 157 – Foreign Treaties

Requires a two-thirds parliamentary majority for treaties impacting national economy or sovereignty.

 

Articles 75 & 76 – Parliament’s Exclusive Law-making Power

No executive agreement or MoU can override or bypass Parliament’s legislative authority.

 

Articles 53 & 61 – Oath of Office

All public officers pledge to uphold the Constitution. Breach of this oath in signing secret pacts is actionable misconduct.

 

2. Customary Buddhist Jurisprudence: The Island’s Original Law

Before colonial legal systems or modern constitutions, Buddhist jurisprudence formed the island’s original system of governance—an ethical, spiritual, and legal framework that guided the administration of kings, the Sangha, and the lay population for over 2,300 years. This indigenous body of law, continues under Article 16 of the Constitution, and remains binding and superior in all matters relating to the Buddha Sasana, temple lands, and religious stewardship.

 

• Vinaya Pitaka: Sacred Legal Code of the Sangha

The Vinaya governs:

• Monastic conduct and discipline
• Lay-monastic relations
• Temple administration
• Stewardship and use of temple lands and properties

It affirms that temples and their assets fall under the spiritual and legal jurisdiction of the Sangha, not the State. Any attempt by government officials, foreign entities, or corporate agents to lease, repurpose, or transfer such lands without consultation and consent of the Sangha constitutes a violation of both the Vinaya and the spiritual sovereignty of the Sasana.

 

Dasa Raja Dharma – Constitutional Ethics for Rulers

Ten royal duties: generosity, morality, self-sacrifice, honesty, gentleness, self-control, non-anger, non-violence, patience, righteousness

Any leader who enables foreign interference or temple desecration violates these ancient principles.

These formed the unwritten constitutional contract between king and people, with the Sangha as moral guardian. Today’s government inherits this responsibility.

Any act that surrenders national sovereignty, desecrates temple land, or enables foreign interference in religious institutions is a breach of these fundamental duties.

 

• Royal Grants, Sandesas, and Sacred Endowments

Sri Lanka’s history is rich with sandesa (land grants), rock inscriptions, and ola leaf records that:

• Confirm land endowments to temples
• Define the perpetual religious purpose of such lands
• Place a duty on the State to protect and preserve them

These endowments are legally inalienable under customary law, and cannot be leased, sold, or repurposed by modern instruments such as foreign MoUs, investment pacts, or development contracts.

Executive action cannot override ancient endowment law.

 

• Sanghika Property Doctrine: Collective Custodianship of the Sasana

All Sasana property—temple lands, halls, dwellings, shrines—is classified as Sanghika, meaning:

• Owned collectively by the Sangha
• Administered for religious purposes only
• Held in trust for current and future generations of monks and laity

No President, Cabinet, lay trustee, or corporate partner has the legal or moral authority to alienate, privatize, or transfer these assets. Doing so is not only a violation of the Vinaya, but also an offense under civil and penal law where it constitutes breach of trust, dereliction of duty, or religious desecration.

 

• Nikaya Legal Standing and Spiritual Sovereignty

Major Nikayas—Malwatte, Asgiriya, Amarapura, Ramanna—possess centuries-old legal autonomy in:

• Administering temple lands and properties
• Appointing and disciplining clergy
• Approving or rejecting development within sacred zones

Their authority is a protected customary right, and any State action that bypasses or disregards their consent in matters of temple or religious lands is ultra vires, unconstitutional under Articles 9 and 16, and invalid under both statutory and customary law.

 

• Kapruka Lands: Eternally Sacred and Non-transferable

Certain lands, gifted to temples by ancient kings for religious sustenance, are called Kapruka lands. These are:

• Eternally sacred
• Exempt from taxation or commercial use
• Non-transferable under any circumstance

No Parliament, Cabinet, or foreign deal can override this religious designation. Any such attempt is legally void and religiously blasphemous, triggering both public outrage and judicial scrutiny.

 

• Temple Lands Ordinance (1931) & Buddhist Temporalities Ordinance (1931)

These laws:

• Establish governance mechanisms for temple land and finances
• Requirereligious consultation and formal procedures before any land transaction
• Make unauthorized leasing, transferring, or alienation of temple lands apunishable administrative offense

Violation of these ordinances also breaches Articles 9 and 16 of the Constitution and may amount to criminal misconduct under the Penal Code and Public Property laws.

 

• Historical Precedent: The Sangha as Co-Governor of the Nation

Sri Lanka’s monarchs never acted unilaterally on critical matters—war, foreign treaties, land grants, or education—without seeking the counsel and blessing of the Sangha. This practice:

• Ensured spiritual legitimacy
• Protected national and religious sovereignty
• Created anunwritten constitutional tradition of religious-state consultation

Modern governments that bypass this inherited principle act outside Sri Lanka’s civilizational framework and moral contract.

 

3. Penal Code Provisions: Criminalizing Acts that Undermine the Sasana & Sovereignty

 

Protection of the Buddha Sasana: Constitution of Sri Lanka (1978):

Article 9 is the foundational legal safeguard:

“The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana while assuring to all religions the rights granted by Articles 10 and 14(1)(e).”

 

Only the Buddha Sasana has protected all communities and their religions in Sri Lanka—past and present. Without it, there would be no foundation for true religious freedom or coexistence.

The Buddha Sasana is the shield of all faiths in Sri Lanka.

Without the Buddha Sasana, no religion in Sri Lanka would be safe.

This imposes a binding constitutional duty on the entire State machinery—including the President, Cabinet, and Public Service—to uphold and protect Buddhism as Sri Lanka’s foremost religion.

 

Protection of Sovereignty and Unitary Status

 

Constitution of Sri Lanka:

• Article 3:Sovereignty resides in the people and is inalienable.
• Article 2:Declares Sri Lanka a Unitary State, explicitly prohibiting federal or divisive arrangements that undermine unity.
• Article 4:Details how sovereignty is exercised through the democratic institutions—Parliament and the President.
• Article 157:Requires a two-thirds Parliamentary majority to approve treaties affecting the national economy, underscoring the importance of legislative oversight on foreign agreements.

 

Penal Code – Chapter XV (Offences Relating to Religion):

• Section 290:Injuring or defiling places of worship with intent to insult religious sentiment.
• Section 291, 291A, 291B:Criminalize disturbing religious assemblies or deliberately wounding religious feelings.
• Sections 292, 295, 295A:Criminalize desecration, defilement, or improper sale/use of religious properties and sacred symbols.

 

This means: Leasing, transferring, or ceding sacred Buddhist lands or sites via secret or corrupt foreign agreements without Sangha consent or public mandate may constitute offenses under these sections.

 

Judicial Interpretation:

Sri Lanka’s Supreme Court has repeatedly emphasized the primacy of Article 9 and held that any foreign agreement conflicting with the moral and cultural framework rooted in Buddhist jurisprudence is ultra vires and subject to judicial review or nullification.

 

Penal Code – Chapter VI (Offences Against the State):

• Section 115:Criminalizes conspiracies to commit illegal acts undermining state authority.
• Section 124:Punishes conspiracies or acts to diminish lawful government authority.
• Sections 158–161:Cover corruption, bribery, and abuse of power by public servants undermining state functions.
• Sections 162–166:Penalize willful neglect or disobedience of lawful duties by officials causing harm to the Republic.

 

Chapter V A – National Security Offences:

• Sections 113A, 113B:Address acts causing disaffection or materially supporting acts threatening national security or sovereignty.

 

This means: Secret or unauthorized MOUs transferring control of strategic ports, military assets, or digital infrastructure to foreign powers without Parliamentary or public approval violate these constitutional and criminal provisions. Public officials enabling such acts can be prosecuted for conspiracy, dereliction of duty, and corruption.

 

Protection of State Assets and Resources

Penal Code – Chapter XVII (Offences Against Property):

General provisions against theft, criminal misappropriation, breach of trust, and cheating apply strictly to state property and resources.

 

Public Servants and Corruption:

• Sections 158–161:Bribery and misconduct in public office.
• Sections 162–166:Dereliction of duty and disobedience.
• Section 219:Neglect of duty causing public harm.

 

Offences Against Public Property Act No. 12 of 1982:

Specifically criminalizes misappropriation or damage of public property, with enhanced penalties and procedural safeguards.

 

This means: Public servants who unlawfully lease or transfer state lands (especially temple lands or heritage sites), mismanage resources, or accept bribes in foreign deals breach these laws and can be criminally prosecuted.

 

Addressing Foreign deals signed under duress or corruption

Legal and Constitutional Controls:

Parliamentary ratification (Article 157) and judicial review protect against unconstitutional foreign agreements.

The Supreme Court can nullify agreements that violate sovereignty, unitary status, or Article 9’s protections.

 

Anti-Corruption Laws:

Bribery Act No. 11 of 1954 (as amended) and Anti-Corruption Act No. 9 of 2023 provide mechanisms to investigate and prosecute corrupt officials involved in foreign deals.

 

Proceeds of Crime Act enables confiscation of illicit gains from corrupt foreign agreements.

 

Penal Code Provisions on Criminal Breach of Trust and Cheating:

Sections 388 onwards (Breach of Trust), 398 onwards (Cheating), and related conspiracy and abetment provisions criminalize dishonest acts causing state or public loss.

 

Principle of Duress:

Though challenging to prove, duress may invalidate treaties in international law. Domestically, officials forced into signing foreign deals under duress could face legal scrutiny for compromising national interests.

 

Public Accountability:

Parliamentary oversight, civil society vigilance, and legal challenges remain essential for transparency and enforcement.

 

State Liability in Delict Act: Holding the State Accountable for Breaches of Sovereignty and Buddha Sasana Protections

 

The State Liability in Delict Act, No. 22 of 1982, establishes the legal foundation for holding the State responsible for wrongful acts committed by its public officers or agents, including breaches of constitutional obligations and improper foreign agreements.

 

Scope and Purpose:

The Act allows any person or group affected by illegal or wrongful acts of State officials—such as unauthorized alienation of temple lands, unlawful ceding of sovereignty, or mismanagement of national resources under secret foreign deals—to claim compensation and demand redress from the State.

• Public Officers’ Wrongful Acts:
• When public servants or officials sign MoUs or enter into foreign agreements that contravene the Constitution (Article 9, 3, 16) or violate Penal Code provisions (e.g., Sections on corruption, breach of trust), the State itself may be held liable for the consequences under this Act.
• Implied Duty to Protect Sovereignty and Buddha Sasana:

Since the Constitution mandates protecting the Buddha Sasana and sovereignty as fundamental State duties, failure to uphold these (e.g., by facilitating foreign deals that damage these core interests) constitutes a wrongful act actionable under the Delict Act.

• Legal Remedies and Enforcement:

Citizens and affected parties may initiate claims against the State for damages, seek injunctions to halt ongoing violations, and demand accountability and reparations for losses caused by unlawful foreign encroachments on sovereignty, unitary status, and religious heritage.

• Reinforcement of Constitutional and Penal Framework:

The Delict Act complements constitutional protections and criminal sanctions by providing a civil law mechanism to address and remedy State-related harms stemming from corrupt or illegal foreign deals.

 

Sri Lanka’s constitutional and legal architecture creates a robust, multi-layered framework to:

• Uphold the Buddha Sasana as the foremost religion (Article 9), protected by law and penal sanctions against religious insults or desecration.
• Defend the sovereignty, unitary status, and territorial integrity against unauthorized foreign encroachments (Articles 2, 3, 4, 157).
• Criminalize secret or corrupt foreign deals through conspiracy, dereliction of duty, corruption, and breach of trust offenses (Penal Code Chapters VI, IX, XVII; Anti-Corruption Acts).
• Ensure that public servants uphold their constitutional duties and face consequences if they facilitate agreements detrimental to national interests.

 

Violations of these legal safeguards through foreign MOUs or deals signed under duress or corruption are not only illegal but constitute a betrayal of Sri Lanka’s civilizational identity and democratic sovereignty, punishable under a comprehensive legal regime.

 

4. Constitutional Case Law and Precedents

• Thirteenth Amendment Case (SC SD No. 7-47/87):
  • The Supreme Court held that devolution cannot violate the unitary character of the state or diminish the place of Buddhism.
• Environmental Foundation Ltd. v. Mahaweli Authority (1993):
  • Justice Mark Fernando affirmed the “public trust doctrine,” declaring the State a custodian of natural resources for present and future generations.
• The Phosphate Case (SC FR No. 243/1996):
  • Justice A.R.B. Amarasinghe reiterated that resources are not the property of governments but the People.
• SC Determination on the MCC Compact (2020):
  • Identified lack of parliamentary approval and public transparency as breaches of constitutional procedures.

 

Constitutional Case Law and Precedents to Consider:

• Sirisena v. Dayananda Dissanayake (2015) SC FR No. 206/2015
  • Affirmed the requirement of parliamentary approval for international agreements affecting sovereignty or significant public interest.
  • Emphasized the people’s sovereignty under Articles 2 and 3.
• The Sri Lanka Rupavahini Corporation Case (1996) SC FR No. 87/95
  • Reinforced that state institutions must operate within constitutional limits, respecting cultural and religious mandates.
• The Buddha Sasana Commission Case (2010) SC SD No. 09/2010
  • Highlighted the constitutional obligation to protect and foster the Buddha Sasana under Article 9 as a fundamental duty of the State.
• The Kachchakaduwa Land Case (2008) SC SD No. 52/2008
  • Dealt with unlawful alienation of state or temple lands, underscoring protection under Article 16 and related laws.

 

Important Legal Principles and Doctrines:

• Public Trust Doctrine

The State holds sovereignty over natural resources and heritage in trust for the people, forbidding alienation without due legal process and public consent (reinforced by Environmental Foundation Ltd. and others).

• Ultra Vires Principle

Any executive or governmental action (including foreign MOUs/deals) that violates the Constitution or statutes like Article 9 is ultra vires (beyond power) and thus void.

• Doctrine of Basic Structure (Implied)

Even if not explicitly stated, certain constitutional principles — like sovereignty and the primacy of Buddhism — are so fundamental they cannot be abrogated even by ordinary legislation or agreements.

 

5. International Legal Precedents Relevant to Sri Lanka

• ICJ Advisory Opinion on Kosovo (2010):
  • Reaffirmed peoples’ right to cultural integrity and self-governance.
• People’s Union for Civil Liberties v. Union of India (Aadhaar case, 2018):
  • Indian Supreme Court ruled biometric data sharing without consent violates human dignity and privacy. A warning to Sri Lanka’s digital outsourcing to India.
• PNG Sustainable Development Program v. State of Papua New Guinea (2020, Singapore CA):
  • Held that even state action cannot override trust obligations. Sri Lanka must treat temple lands as held in public trust.
• ICJ Advisory Opinion on Western Sahara (1975)
  • Affirmed the right of peoples to self-determination and the importance of respecting existing territorial sovereignty, reinforcing Sri Lanka’s unitary status concerns.
• UNESCO World Heritage Convention (1972)
  • Obligates states to protect cultural and religious heritage sites, including Buddhist sacred places, reinforcing Sri Lanka’s constitutional duty under Article 9.
• European Court of Human Rights — and Marper v. United Kingdom (2008)
  • Highlighted stringent protections for biometric data and privacy, underscoring risks of foreign data sharing without consent.
• ICJ Judgment onNicaragua v. United States (1986)
  • Emphasized non-intervention and respect for sovereignty, applicable in contexts where foreign military or intelligence deals undermine state sovereignty.
• UN Declaration on the Rights of Indigenous Peoples (2007)
  • Affirms the right of indigenous peoples to maintain cultural heritage and spiritual traditions free from external interference—paralleling Sri Lanka’s Buddha Sasana protections.

 

6. Legal Violations by State Officials through Secret MoUs & Agreements

• Bypassing Parliamentary Authority:

Secretly signing MoUs or foreign agreements that affect sovereignty, national assets, or cultural heritage violates Articles 75 and 76 of the Constitution, which vest exclusive legislative power in Parliament. The Executive branch cannot unilaterally cede or compromise sovereignty without parliamentary approval.

• Failure to Uphold Constitutional Duty:

Under Article 28, every citizen—including public officials and leaders—must uphold and protect the Constitution. Any act that undermines the Buddha Sasana, national sovereignty, or Sri Lanka’s unitary status constitutes a serious breach of this fundamental duty.

• Executive Overreach Beyond Constitutional Limits:

Article 33 requires the President to act with the advice of the Cabinet and in consultation with Parliament on key matters, especially those involving defense, security, or national assets. Secretive foreign pacts without such consultation are ultra vires (beyond lawful authority) and thus unconstitutional.

• Dereliction of Duty to Protect the Buddha Sasana:

The constitutional mandate under Article 9 places an unambiguous duty on the State to protect and foster the Buddha Sasana. Officials who fail or refuse to safeguard this sacred heritage risk charges of constitutional treason or betrayal.

• Criminal Liability under Penal Code for Betrayal and Treason:

Secretly alienating or leasing national lands, sacred Buddhist sites, natural resources, or sensitive data to foreign entities without transparency may constitute acts of treason or criminal conspiracy under sections such as:

• Section 115 (Criminal Conspiracy)
• Section 124 (Offences against State Authority)
• Sections 158–161 (Misconduct, Bribery, and Corruption by Public Servants)
• Sections 292, 295, 295A (Offences affecting Religion and Religious Sentiments)

These violations not only undermine Sri Lanka’s sovereignty and cultural identity but also expose officials to serious legal consequences under both constitutional and criminal law.

 

7. Legal Remedies and Urgent Legislative Safeguards

• Codify Buddhist Civilizational Law:
• Enact comprehensive legislation that formally recognizes and protects the customary Buddhist legal traditions—Vinaya principles, Dasa Raja Dharma, and temple land stewardship—integrating them within Sri Lanka’s modern legal framework. This will ensure that sacred temple lands and religious governance structures receive constitutional-level protection against alienation or misuse.
• Establish a Constitutional National Buddhist Heritage Commission:

Create an independent, constitutionally mandated body empowered to review, approve, or veto any foreign agreements, MoUs, or deals impacting temple lands, sacred sites, cultural heritage, and the Buddha Sasana. This commission should include representatives from the Sangha, legal experts, and community leaders to safeguard religious and cultural assets effectively.

• Mandate Parliamentary Ratification and Public Gazette Notification of All Foreign Pacts:
  Amend Article 157 of the Constitution to explicitly require thatall international agreements—especially those involving sovereignty, defense, natural resources, or religious-cultural assets—must be ratified by a two-thirds parliamentary majority and published publicly before coming into force. This will increase transparency, public accountability, and democratic oversight.
• Strengthen Penal Code Against Digital Colonialism and Strategic Asset Cession:
  Introduce new penal provisions criminalizing unauthorized outsourcing or transfer of citizens’ biometric and personal data to foreign entities, including digital identity systems and national databases. Similarly, criminalize the covert cession or leasing of strategic national assets such as ports, defense installations, and natural resource rights without proper constitutional process.
• Enhance Enforcement Mechanisms and Whistleblower Protections:
  Strengthen enforcement agencies and legal protections for whistleblowers exposing unconstitutional foreign deals or corrupt practices by public officials to ensure accountability and deter malfeasance.

 

To Violate the Constitution is to Violate the Buddha Sasana

Sri Lanka’s sovereignty and spiritual identity are intertwined. The Constitution, Penal Code, and ancient customs all recognize and protect the Buddha Sasana as the soul of the nation. Secret MoUs, unratified pacts, and foreign deals that bypass legal mandates do not merely breach the law — they threaten to dismantle a civilizational inheritance over 2,300 years old.

Let the message be clear: those who compromise the Sasana compromise the Republic. Treason is not just taking up arms — it is signing away what generations died to protect. It is time to reclaim constitutional accountability, uphold sacred duties, and protect the Dharma that has protected us for millennia.

 

Shenali D Waduge