Sri Lanka has alternated between authoritarian politics and constitutional democracy over the past 70 years. For 25 years after independence, the country functioned as a constitutional democracy with regular elections and power alternating between the two main political parties. Since 1972, political elites have used constitution-making as a method of consolidating their hold on political power. In 2015, the 19th Amendment to the Constitution trimmed the powers of the President and provided for a balanced form of power-sharing between executive and legislature. It enhanced the independence of the courts and the fourth-branch institutions. However, these gains were reversed by the 20th Amendment, passed in 2020. Against the backdrop of an intense competition for political power and the manipulation of constitutions to retain power, this contribution discusses three recurring sites of constitutional struggle and debate in Sri Lanka: struggles over presidentialism, power-sharing and the place of Buddhism in the constitution. This paper contends that a return to constitutional democracy will require, at a minimum, a revisitation of the first two issues, even if the third — the place of Buddhism — remains untouched. The paper concludes by arguing that while all three constitutional struggles have a different historical trajectory and different dynamics, they are all part of a larger struggle — the struggle to transform Sri Lanka from a Buddhist-majoritarian state into a plural, multi-ethnic and multi-religious society in law and in practice.
Beginning around 1990, judicial interpretation transformed public law in Sri Lanka by blending writs with fundamental rights. On the one hand, the Supreme Court has defined and expanded the constitutional right ‘to equality and equal protection of the law’ by drawing on administrative law concepts of natural justice, reasonableness, legitimate expectation, the duty to provide reasons for decision-making, and proportionality. On the other hand, judges have relied on the Bill of Rights as a standard to assess the decisions of public authorities in writ matters. This relationship between the writs and the rights has had important implications for the growth of public law in Sri Lanka. There has also emerged an incipient ground of review, ‘rights-based review’, as part of the writ jurisdiction, and the ‘public trust doctrine’ in fundamental rights review. Public law has been strengthened by the growth of public interest litigation and the use of new judicial remedies. This article looks at how the writ jurisdiction and rights-based review have evolved in recent times and considers how the two remedies have been used and fused, in a country where the legal and constitutional history has taken a different trajectory to some other post-colonial societies. The article concludes by arguing that this fusion of constitutional and administrative law concepts, together with the expansion in the rules of standing and the emergence of the new concepts of public trust doctrine and fairness, have generated a more robust legal framework that can better protect constitutional rights and democratic freedoms.
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