ABSTRACT
How are such decisions by the Supreme Court of Sri Lanka to be judged? Is the Sri Lankan judiciary merely a tool to carry out majoritarian impulses or has it championed the rule of law and fundamental rights?4 I argue that the court’s seeming bias towards the ruling regime and its inability to assuage the fears of the minority stems from its structural attributes inscribed in the constitution. Parliamentary sovereignty and the constitutional power of the executive over judicial appointments made the court less able to challenge the parliament. This, coupled with an ongoing civil war with the LTTE,ensured deference to the other state institutions in matters of national security and contributed to the court’s failure “to restrain majoritarianism” and facilitate nation building.5 Despite several opportunities, the Sri Lankan judiciary (unlike its Indian counterpart) remained committed to legal positivism rather than some form of judicial activism.
