Grasping at Straws: Judicial Review of Legislation in Sri Lanka

Abstract In this paper, I attempt to examine the evolution of judicial review of legislation in Sri Lanka with a view to better understanding how it has impacted the democratic fabric and constitutional matrix of Sri Lanka. The impact that judicial review of legislation has had on rights jurisprudence, enhancement of democracy, prevention of persecution against selected groups are analysed in this paper in relation to the Ceylon Constitutional Order in Council of 1946 (‘Soulbury’ Constitution) and the two autochthonous constitutions of Sri Lanka of 1972 and 1978. The first part of the paper comprises of a descriptive analysis of judicial review of legislation under the three Constitutions. This is expected to perform a gap filling function in respect of the lacuna that exists in Sri Lankan legal literature in relation to the assessment of the trends pertaining to judicial review of legislation in Sri Lanka. In the second part of the paper, I have analysed decided cases of Sri Lanka to explore how the judiciary has responded to legislative and executive power, and has given up or maintained judicial independence. In this respect, I have also attempted to explore whether the judiciary has unduly engaged in restraint thereby impeding its own independence. The third part of the paper evaluates the differences in technique and stance the judiciary has adopted when reviewing draft enactments of the national legislature and when reviewing draft or enacted statutes of Provincial Councils. From a comparative constitutional perspective, this assessment is expected to provide the background that is essential in understanding the island nation’s current constitutional discourse, transitional justice process, and its approach to human rights.