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A Provisional Evaluation of the Contribution of the Supreme Court to Political Reconciliation in Post-War Sri Lanka (May 2009-August 2012)

A Provisional Evaluation of the Contribution of the Supreme Court to Political Reconciliation in Post-War Sri Lanka (May 2009-August 2012)

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Published by: ColomboICES on Jun 04, 2013
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ICES Research Papers

A Provisional Evaluation of the Contribution of the Supreme Court to Political Reconciliation in Post-War Sri Lanka (May 2009-August 2012)
Dinesha Samararatne

Research Paper No: 5 March 2013

The imperative for political reconciliation re-emerged in the Sri Lankan public landscape with the end of hostilities in May 2009. In that context, this paper seeks to foreground the mandate and actual contribution of the Sri Lankan judiciary with regard to political reconciliation by considering three questions. One, whether the judiciary in a democratic society can and/or ought to engage with the question of political reconciliation and two, whether the Sri Lankan judiciary has such a mandate within the existing constitutional framework. Through an assessment of some current thinking on the question of political reconciliation in general and particularly through the capabilities approach, it is argued that Sri Lankan judiciary does have a mandate to contribute towards political reconciliation. The third question considered in the paper is whether, the Supreme Court has in fact engaged with the question of political reconciliation. Through an examination of Special Determinations of the Supreme Court and jurisprudence on Fundamental Rights during May 2009 to August 2012, it is argued that while some contribution has been made, by and large the Court has been cautious in its approach, leaving many possibilities unexplored. Dinesha Samararatne, LL B (Hons) (Colombo), LL M (Harvard), Attorney-at-Law, is a Lecturer attached to the Department of Public & International Law, Faculty of Law of University of Colombo, Sri Lanka where she teaches human rights law and administrative law. She is a former Fulbright scholar and is currently a Visiting Fellow of the Gilbert+Tobin Centre for Public Law of the Faculty of Law of the University of New South Wales, Australia. Her research interests are in public law and some of her recent published work has been in relation to the public trust doctrine, public interest litigation and the right to liberty. Her current research is with regard to the social contract theory, sovereignty and the rule of law as they relate to the Sri Lankan context.

Printed by Karunaratne & Sons (Pvt) Ltd.

ISBN 978-955-580-139-3

9 789555 801393

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