Author
Dr Mario Gomez
Organisation/Institution
International Centre for Ethnic Studies
Country
SRI LANKA
Panel
Human Rights
Title
Making Rights Work: From Judicial Restraint to Robustness in Sri Lanka
Abstract
Sri Lanka embraced a strong form of Presidentialism in 1978 with the adoption of a new constitution. As a foil to Presidentialism, the constitution introduced an enforceable Bill of Rights for the first time. The Supreme Court was given the exclusive power to determine if a rights violation had occurred and was given the power to review legislation before it was enacted to determine its constitutionality. The Court was initially cautious in its interpretation of the Bill of Rights and very few petitioners succeeded in obtaining a remedy. However, beginning in the 1990s, the Court began to review new areas of executive action and developed new interpretations of rights. These developments have received an added impetus over the past ten years. The Court has broadened the scope of constitutional review by reviewing presidential pardons, the declaration of emergency by the executive, the dismissal of a Prime Minister and the calling of an election, and executive negligence that resulted in the Easter Bombings of 2019. It has also upheld rights against sexual harassment at the workplace, expanded the right to free speech, given orders against non-state actors, determined that the decriminalization of homosexuality would advance the dignity of the LGBTI+ community, and held that Sri Lanka is a secular state, despite the privileged position given to Buddhism in the constitution. In this presentation I will argue that this ‘new jurisprudence’ has been transformative and examine the different dimensions of this process. This new jurisprudence has upheld fundamental constitutional values, including the doctrine of public trust, the separation of powers, and the rule of law. I argue that three factors have shaped this new jurisprudence: new judicial personalities; the Constitutional Council, first introduced in 2017, abolished in 2020, and re-introduced in 2022; and the lack of overt intimidation of the judiciary over the past ten years.
Biography
Mario Gomez is the Executive Director at the International Centre for Ethnic Studies (ICES), an independent think-tank in Sri Lanka. He has a doctorate in law, and has worked in academia, human rights, and peace building. He previously taught public law and legal theory, at the University of Colombo. The ICES (www.ices.lk), established in 1982, works on reconciliation, justice, gender, and human rights, through research, the creative arts, education, and dialogue. Some of its recent initiatives include an online museum of memory and coexistence (www.momac.lk), dialogues on inclusive history education, and research and video documentaries on shared religious spaces, and ‘dealing with the past’. Mario Gomez’s academic work includes publications on human rights, religious violence, gender, and constitutional change.
