Dinesha Samararatne: Travelling jurisprudence and porous boundaries – prospects for Comparative Public Law
Why do judges consider foreign judgements in writing their own judgements? When lawyers cite foreign authorities in litigation what forms of influence does it have on the proceedings? How does one understand its impact? What frames of analysis should one use to understand the impact? These questions of comparative method are key to understanding the existence and evolution of the common law in Commonwealth jurisdictions. I look at the impact of the travelling jurisprudence of Indian public law on the public law jurisprudence of its island state neighbour Sri Lanka, post 1978 i.e. under the Second Republican Constitution, in trying to answer some of these questions.
Due to geographical proximity and historical, socio‐cultural and economic linkages, in general, India holds a prominent place in the public imaginary of Sri Lankan life. Sri Lanka’s legal system is no exception to that. Although both legal systems inherited the common law from the British and gained independence approximately at the same time, the legal architecture, its history and context in the two states are in fact quite different. The Indian Constitution recognises judicial review of legislation that violates fundamental rights whereas the Sri Lankan Constitution explicitly protects such written and unwritten laws passed before the enactment of the Constitution, and excludes judicial review of legislation (see Arts 16(1) and Art 80(3)). In India, petitions regarding violations of fundamental rights and the issuance of writs are remedied through the writ jurisdiction of the Supreme Court and the High Courts of the states respectively. In Sri Lanka the jurisdiction to determine fundamental rights petitions are vested exclusively with the Supreme Court while the writ jurisdiction is vested with the Court of Appeal (Art 126 and Art 140). Where the petition relates to a matter assigned to Provincial Councils, writs may be filed before the Provincial High Courts (Art 154P). In some instances, Sri Lankan Courts have cited these differences in the two Constitutions and refused to be guided by Indian judicial authorities (Elmore Perera v. Major Montague Jayawickrema Minister of Public Administration and Plantation Industries and Others  1 Sri LR 285; Ceylon Electricity Board Accountants’ Association v. Minister of Power and Energy and Others  SC (FR) 18/2015, SC Minutes 03 May 2016).
By and large however, Sri Lankan Courts have been welcoming of Indian judicial authorities and have often followed such jurisprudence in developing its public law. The areas of public law that have been thus influenced include – the right to equality, public interest litigation, the Habeas Corpus writ, judicial enforcement of Directive Principles of State Policy and pre‐enactment judicial review of legislation. In each of these aspects of Sri Lankan public law, Courts have relied heavily on Indian jurisprudence in its determinations (For examples see, Leeda Violet and Others v. Vidanapathirana, OIC, Police Station, Dickwella and Others  3 Sri LR 377; In re Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation) SC (SD) 19/2003, SC Minutes 25 July 2003). In most instances such reliance has been for the purpose of the strengthening of substantive rule of law but in some of these areas, such reliance has resulted in the narrowing of the scope of fundamental rights.
In studying the influence of Indian public law jurisprudence in Sri Lanka several patterns emerge. One is the time lag. It has taken around ten years for Indian jurisprudence to travel to Sri Lankan judicial determinations. This time lag is perhaps indicative of the time it takes for the Sri Lankan legal system to respond and adapt to jurisprudential developments across the Palk Strait. In some cases, Indian jurisprudence that is initially rejected by the Court, are welcomed in later cases but with no consideration for its rejection in the earlier judgements. Indian jurisprudence seems to have a creeping influence as well on the development of public law in Sri Lanka.
Another emerging pattern is that several judicial decisions that have had wide constitutional ramifications have been guided by one or two Indian authorities. Yet another pattern is the method of reference to Indian jurisprudence. The judicial interpretation of the law is considered by the Court while the broader context within which the judgement was delivered is generally not considered.
Finally, and most probably due to the aforementioned practice, it seems that the transformative aspects of Indian public law jurisprudence have not made their way into Sri Lankan jurisprudence even when some of the judgements which effected those transformations, did make their way into Sri Lankan public law. Indian Constitutionalism which is arguably one of the most inspiring aspects of Indian public law has not had a meaningful impact on Sri Lankan public law. This study of the influence of Indian public law cases on Sri Lankan public law points to the curious and perhaps unpredictable nature of interactions between two legal systems. Familiarity and proximity with a state coupled with some similarities in constitutional architecture combine to create an environment conducive for the consideration of comparative jurisprudence in public law adjudication. Commonwealth jurisdictions are generally porous and receptive to a ‘cosmopolitan’ view of foreign jurisprudence. Citation and/or reliance of foreign authorities however is ad hoc and the outcomes are unpredictable. Finally, when jurisprudence travels through the porous boundaries of Commonwealth jurisdictions or creeps through those boundaries, the transformative potential of such jurisprudence can often be left behind.