Constitutional Chess? Strategic Considerations in the Sri Lankan Supreme Court’s Constitutional Amendment Jurisprudence

Abstract

Sri Lanka’s supreme court has approved five constitutional amendments over the last two decades. This constitutional back and forth, marked by contradictory projects espoused in the amendments yielded charges of the court’s failure to resist executive power. The eighteenth and twentieth amendments were projects of abusive constitutionalism and de-democratisation, and the court’s review of these amendments was characterized by capitulation in the former, and qualified resistance in the latter. This paper locates the Sri Lankan experience within comparative scholarship on strategic judicial empowerment. It then canvasses the outcomes in these cases, and advances three considerations that may explain the court’s response in these amendments – public legitimacy of the amendment, the court’s interest, and political cost. These considerations are demonstrated through the court’s reasoning and conclusions on key provisions in these determinations. A combination of these considerations lends greater coherence to what is otherwise a confusing body of jurisprudence.