From banking to Buddhist law

Tuesday, 15 February 2011 00:01 -     - {{hitsCtrl.values.hits}}

Well-known lawyer and legal academic Dr. Wickrema Weerasooria, who has written several texts on banking, financial and commercial subjects, has turned his attention to a text on Buddhist law. His text on Buddhist ecclesiastical law will be launched by Chief Justice Asoka de Silva today (15 February) at the Postgraduate Institute of Management (PIM). Below is a review of the text by Dr. Dayanth Jayasuriya, President’s Counsel:

The concept of Buddhist law as a separate and distinct branch of the law is of recent origin.

In 1967 the late Professor K. N. Jayathilleke delivered a series of five lectures at The Hague Academy of International Law on the subject of ‘The Principles of International Law in Buddhist Doctrine’.

His task of making out a case for Buddhism as a legal discipline was of a formidable nature since the prevailing view until then was that Buddhism deals with ethics and is thus void of the elements that would characterise it as a legal discipline (what was called Buddhist law in Burma, for instance, during the colonial period was a reference to the general laws applicable to the population and thus without any religious significance).

Slowly but surely his views gained currency and in 2002 Herbert Kritzer edited a four volume encyclopaedia entitled ‘Legal Systems of the World’ with one chapter devoted to Buddhist law. In the following year, Buddhist law became an optional subject at the Buffalo Law School in the United States.

In 2009 even the Oxford International Encyclopaedia of Legal History accorded prominence to Buddhist law. The late Dr. H.S.S. Nissanga has suggested that Professor Jayathilleke ought to have argued that the International Court of Justice should, under Article 38 of its Constitution, treat Buddhist law as one of the principles of law recognised by civilised nations.

In fairness to Professor Jayathilleke, one should perhaps recognise that given the daunting task of dispelling the notion that there is no such thing called Buddhist law, it would not have been feasible to have advocated such a position in what was obviously a path-breaking and pioneering initiative. His premature death prevented him from developing his arguments further but much water has since flown under the bridge.

The Noble laureate Amartya Sen, for instance, has made several references to Buddhist concepts of justice and equality in his 1999 book entitled ‘Development and Freedom’. His latest book, ‘The Idea of Justice,’ published in 2009, also contains several references to the Buddha as well as to Buddhism.

In the section on ‘The Global Origins of Democracy,’ he states thus: “While Athens certainly has an excellent record in public discussion, open deliberation also flourished in several other ancient civilisations, sometimes spectacularly so; for example, some of the earliest open general meetings aimed specifically at settling disputes between different points of view, on social and religious matters, took place in India in the so-called Buddhist ‘councils,’ where adherents of different points of view got together to argue out their differences, beginning in the sixth century BC...”

Buddhist law is essentially judge-made law based on custom, practice and codified rules in certain Buddhist texts such as the Vinaya Pitaka. Law reports from the 1930s until the ’70s contain many judgements dealing with Buddhist ecclesiastical law.

In most of the appellate court cases, Dr. H.V. Perera Q.C. had appeared for one of the parties, whilst N.E. Weerasooria Q.C. had appeared for the other side in both the trial court as well as in the Supreme Court.

Justice Rajah Wanasundera has remarked in his ‘Message’ that Weerasooria’s “arguments in this field were respected by the Judges and many of his submissions became the established law”.

As a child I had seen Norman Weerasooria Q.C. in conversation with my father (the late Professor J. E. Jayasuriya) at our residence at the Peradeniya Campus, but never had the good fortune to know him personally. I have, of course, known Wickrema since the early 1970s.

He has had a distinguished and remarkable academic and professional record, followed by prestigious appointments in the academia here and in Australia; public service (as a very effective Secretary of the Ministry of Plan Implementation) and the Foreign Service (as ‘our man in Canberra’).

When I was the Chairman of the Insurance Board of Sri Lanka, I had no hesitation in endorsing his appointment by the insurance industry as Sri Lanka’s first Insurance Ombudsman, a position in which he has functioned effectively and with great acceptance during the past six years.

Wickrema is a prolific author with nearly 20 books to his credit and his name is synonymous with banking law. His publications are a standard work in many countries. During recent years when I have been training Singapore-based banking lawyers who had studied in Australia, all of them were familiar with Wickrema’ s banking and anti-money laundering law books. One of his publications on Australian banking law is now edited by others – a rare distinction indeed for an author.

When I heard that Wickrema was working on a new book in a totally different field from his previous studies, it did not come as a surprise because I knew that he was merely following his late father’s footsteps. In his Preface, he confesses that an ‘unseen voice’ or an ‘unseen hand’ virtually made him reach for books on Buddhism in his library at Mirigama and thus compelled him to work on this particular publication.

The book has been dedicated to his late father – a fitting tribute to an eminent authority on Buddhist law and a historian who also played a key role in the affairs of the University of Ceylon and in the management of leading Buddhist girls’ schools.

Wickrema’s book on Buddhist ecclesiastical law runs into over 850 printed pages. It has 30 chapters and is divided into five parts. Part 1 has a chapter on the Buddhist Temporalities Ordinance of 1931. Legislation dealing with Buddhist temples and their management and control has its genesis in the Buddhist Temporalities Ordinance of 1889.

Even after the Ordinance had received the assent of the Queen, concerns were raised in the House of Commons as to whether the legislation involved “in any form the endowment of the Buddhist religion” and whether the Ordinance is “a distinct departure from the principle of non-interference on the part of the Local Government with Buddhist affairs” (House of Commons, Hansard of 22 August 1889).

Colonial rulers particularly in South Asia always recognised that trying to regulate religion was like opening a Pandora’s Box. Even post-colonial societies still grapple with issues at the inter-section of religion, public policy and law; striking a delicate and healthy balance without leading to violence is indeed a major challenge faced by contemporary societies.

Part 2 of the book has 10 chapters running into more than 350 pages. It begins with the legal status of temples and places of worship and examines the status and role of Viharadhipati and issues of successions. Entry into monkhood, rules of discipline, wrongful conduct, right of residence and mobility, disrobing, expulsion, etc., are some of the key aspects considered in this Part.

The distinction between property belonging to a temple and the personal property of a monk is addressed in two chapters, thus signifying the often controversial nature of the subject.

Part 3 contains photographs of temples of significance and of lawyers and Judges who have helped to formulate legal principles. Since law reporting in this country leaves much to be desired, it may well be that the collection of photographs of judges is not exhaustive.

Part 4 is an analysis of interesting or landmark judgments. These include the Gampola Perahera case and the imposition of Martial Law in 1915. Chapter 26 deals with a bhikku’s right to be enrolled as an attorney-at-law, a case where the Supreme Court was divided in its opinion.

The chapter also deals with issues such as obtaining a driving licence and securing employment in public service. In other jurisdictions too similar issues have surfaced. For instance, British courts had to decide whether a Sikh wearing a turban is under a legal obligation to wear a helmet whilst riding a scooter.

Part 5 deals with cases concerning devales, kapuralas and rituals. One chapter examines the provisions in the Constitution. There is a select bibliography (which should be expanded in a second edition) and a very comprehensive index. The final chapter is on the future of Buddhist ecclesiastical law.

Wickrema has a remarkable ability to demystify concepts and express them in relatively simple terms. This has been a hallmark of his other publications and this publication is no exception. Within the space of some 850 pages Wickrema has analysed over 200 judicial decisions. These decisions collectively represent the country’s Buddhist law.

In Kodeswaran v. The A.G. (1969 72 NLR 337), Lord Diplock promulgated the concept of the common law [of Sri Lanka]: “…the Courts of Ceylon have applied its basic principles to the solution of legal problems posed by changing conditions of society in Ceylon”. (p. 342).

Buddhist law is essentially the common law of the country, an indigenous product developed and nurtured by the courts. But one needs to be mindful of the fact that the evolution of Buddhist law has not been an easy process.

In a case decided way back in 1883 it was held that not all the rules in the Buddhist scriptures have been adopted or were in force in the country and based on this decision another court held in 1918 that there have been a number of departures from strict Buddhist law and that courts need to look to actual practice and custom than to ancient canons (see Nadaraja T. The Legal System of Ceylon in Its Historical Setting, 1972, p. 189).

It redounds to the credit of Wickrema that he has successfully managed to navigate in turbulent waters and produce what Dr. Ananda Guruge has described in the Foreword as a “scholarly text [which] is a global first.”

The book is published by the Postgraduate Institute of Management and the Chancellor of the Sri Jayewardenepura University, the internationally renowned Buddhist scholar, the Venerable Professor Bellanwila Wimalaratna Anunayake Thero, and Professor Udita Liyanage deserve our gratitude for making this publication see the light of day.

There is a paucity of legal literature in the Sinhala and Tamil languages and it is hoped that at least parts of the book, if not the entire volume, will be translated into these languages. Copies of the book should ideally be available in the libraries of all temples and pirivenas, the traditional centres of learning. Wickrema’s book is being published in a historic year and it is but fitting that it should receive the widest possible coverage.

In this context, it is pertinent to quote the words of the late Professor J. E. Jayasuriya, who in a lecture entitled ‘The Buddhist Tradition in Education in Sri Lanka’ delivered at the Indian Institute of Education, said: “It should be of special interest to an Indian audience as it had its origins in India… But it did flower in Sri Lanka in a distinctive and somewhat fascinating style... In spite of unpropitious circumstances, the Buddhist monks carried on tenaciously, and it must be said to their credit that though in the temple the lamp of learning was often no more than a flicker, it was never allowed to die out...”

To commemorate the Sambuddhajayanthi this year, the Sri Jayewardenepura University may well consider establishing a chair in Buddhist law. Wickrema’s profound knowledge on this rare subject makes him an ideal ambassador to promote the further evolution of Buddhist law covering even other jurisdictions such as India, China, Thailand, Cambodia, Tibet, etc.