Reframing Feminist Imperatives in Adjudication in Sri Lanka

Dinesha Samararatne

University of Colombo

What does the study of judicial discretion reveal about advancing gender through adjudication? In the Sri Lanka chapter of Women and the Judiciary in the Asia-Pacific, I argue that in jurisdictions of the Global South, this question cannot be limited to a study of inclusivity of women judges or of the exercise of judicial discretion for advancing gender justice. The focus must extend beyond the study of individual judges and/or their judgements, to a study of the system of adjudication. By the system of adjudication, I mean the laws, legal institutions, and the legal and political culture within which they operate. 

I use nine emblematic Sri Lankan cases to illustrate this claim. Some of these cases were adjudicated upon by women judges, others were not. Through an assessment of these cases, including the comparison of judicial reasoning in lower and appellate courts, I demonstrate that unlike in the Global North, posing the woman question of judges in the Global South led to misleading answers regarding women’s inclusion and representation in adjudication. Such misrepresentations draw attention away from structural problems that have plagued legal institutions, and shifts the focus away from problematic values of the legal as well as political culture. Accordingly, in asking the woman question of the judiciary, it is also necessary to question the system of adjudication. 

My analysis of the emblematic cases suggests that any link between women judges and gender justice is tenuous. I suggest that an examination of the ways in which the system of adjudication operates better explains the dynamics of gender justice in adjudication. More specifically, my assessment affirms that the gender of judges is not necessarily a determining factor in the advancement of gender justice. My assessment reveals that the exercise of judicial discretion often reflects stereotypical perceptions about gender and therefore affirms patriarchy. In general, the Sri Lankan jurisprudence provides minimal recognition to the impact of discrimination and violence experienced by women, and reveals the ways in which delayed legal developments have the effect of denying gender justice.

In Sri Lanka, we have a paradoxical condition where women enjoy high levels of formal equality in a legal sense, but are still severely under-represented in politics, in the formal workforce, and in positions of leadership. In general, they do not enjoy substantive equality. Feminist scholarship and activism in Sri Lanka highlights that gender justice has been elusive in legal reform as well as in litigation. Given this paradoxical nature of feminist consciousness, it is more useful to reframe the woman question and apply it more broadly to the system of adjudication in Sri Lanka, and possibly in other similar jurisdictions in the Global South.  

The cases that I examine are public law cases involving the interpretation of the Constitution and the exercise of judicial discretion in the enforcement of criminal sanctions for violence against women. They involve the offences of rape, gang rape and statutory rape in criminal law, fundamental rights petitions, and pre-enactment judicial review of bills. With the exception of the judgement of the High Court in the Kamal Addararachchi case (1997-2001) and to some extent in the Vishwamadu case, Courts confine themselves to formal and gender-neutral reasoning. Even the High Court’s gender-sensitivity in the Kamal Addararachchi case was rejected by the appellate courts, and the High Court judge was reprimanded by both the Court of Appeal and the Supreme Court. The Kamal Addararachchi case suggests that even where a female justice attempts to advance a gender-sensitive approach, its impact can be limited by the higher courts which do not share that view. 

Manohari Pelaketiya v Secy Min of Education is perhaps the only example of jurisprudence that upholds women’s right to equality and non-discrimination in Sri Lanka. The Court affirmed ‘the constitutional imperative of giving due recognition to womenfolk resulting in equality and non-discrimination among sexes’ (Manohari Pelaketiya v Secy Min of Education 2016: 15-16). The Court further noted that ‘Sri Lanka boasts of both constitutional as well as international obligations to ensure equity and gender-neutral equality which this Court cannot simply ignore’ (Manohari Pelaketiya v Secy Min of Education 2016: 15). The feminist consciousness demonstrated in this judgment is in sharp contrast to the judicial approach in the Special Determination on the Local Government (Elections) Bill, Sampath v AG and the Kamal Addararachchi cases. 

The harm to women and to the cause of gender justice is compounded by silence and non-recognition of gender justice in the jurisprudence, as well as by legal delays. For instance, in the Krishanthy Kumaraswamy case, the Supreme Court maintained silence around the fact that the crimes were committed against civilians in the context of an internal-armed conflict, that it had serious implications for discrimination and violence, based on ethnicity and the gruesome nature of the gang rape. In the Special Determination on Local Government (Elections) Bill, the Court did not acknowledge the historic lack of representation of women in representative politics in Sri Lanka. 

Similarly, in Sampath v Attorney General, the Court was silent about the way in which the incident of statutory rape interrupted the victim’s life. This silence suggests that women victims of discrimination and/or violence experience long and drawn-out litigation in which the Court is silent on the question of gender injustice. A related significant point to note is that judgements issued by the Court of Appeal and the Supreme Court are issued in English and proceedings are also in English. How many of these litigants had these judgements read and/or explained to them? How did they feel about the judicial adjudication of their constitutional rights and legal rights being carried out in a language other than their first language (which would be Sinhala or Tamil)? These questions about remedies and the impact of litigation beyond the adjudication process affirm my claim and concern about judging and gender justice in the context of the Global south. 

Accordingly, I argue in this chapter that the woman question in judging ought to be framed as a question of feminist adjudication. Legal institutions and the law reflect structural issues that constrain gender justice and operate with a legal and political culture that is shaped and informed by ethno-nationalism and patriarchy. These issues must be acknowledged and addressed in explaining the challenges experienced in seeking gender justice in the Global South.  This broader perspective would include an appreciation for institutional reform, policy interventions, law reform, and constitutional reform as elements of an approach that seeks to develop a feminist approach to adjudication. This approach allows us to pay attention to the woman question in procedural and substantive aspects of the law. Further, it allows us to focus on legal institutions.  It draws attention to the need to include women in legal discourse and in the construction of legal rules. It provides the legal basis and institutional support for challenging gender bias. A feminist approach to adjudication would encourage reasoning through contextualisation and particularity. Consequently, it would be possible to grant remedies to injustices experienced by women and to promote their substantive equality within an open and accountable process. However, this is not only a question of reforming the process in terms of the substance and culture of adjudication; it is also a question of political will and of political culture. 

To conclude, I return to the initial question, namely, does the inclusion of women judges advance gender justice? In terms of adding diversity to the judiciary and increasing its legitimacy through inclusivity, it does advance gender justice. Beyond that, whether women justices do in fact make a difference in jurisdictions like Sri Lanka is hard to establish. The jurisprudence available thus far suggests that they do not. The jurisprudence is silent on how the law impacts women – whether in terms of equality or in violence against women. A transformation of such a system cannot be limited to ensuring the inclusivity of women in the judiciary or in other institutions involved in the administration of justice. The development of a feminist consciousness requires parliament to revise legislation that discriminates against women, and the development of a legal culture in which there is recognition and sensitivity to the discrimination and exclusion experienced by women.  Until these transformations take place, the advancement of gender justice through the judiciary will, most likely, remain ad hoc. 

Dinesha Samararatne is a Senior Lecturer attached to the Department of Public & International Law, Faculty of Law of the University of Colombo, Sri Lanka. 

Suggested Citation: Dinesha Samararatne, ‘Reframing Feminist Imperatives in Adjudication in Sri Lanka’ IACL-AIDC Blog (4 November 2021) https://blog-iacl-aidc.org/women-judiciary/2021/11/2/reframing-feminist-imperatives-in-adjudication-in-sri-lanka.