Making a difference : a feminist analysis of the jurisprudential leadership of the women judges of the Supreme Court of Sri Lanka

This thesis examines the contribution of the seven women judges who have sat on the Supreme Court of Sri Lanka from 1996 onwards to understand how their presence has influenced the jurisprudence of the Court. The Supreme Court, which exercises final appellate jurisdiction as well as sole original jurisdiction in fundamental rights, was established in 1801, and is the apex court in the hierarchy of courts in Sri Lanka. The first woman judge, Shirani Bandaranayake CJ was appointed to this Court in 1996. Since then, a total of seven women judges have sat on the Court. Five of them — Bandaranayake CJ (1996 – 2015), Shiranee Tilakawardane J (2003 – 2014), Chandra Ekanayake J (2008 – 2016), Eva Wanasundera J (2012 – 2018), and Rohini Marasinghe J (2013 – 2015), — have now retired and two, Murdu Fernando J (2018 to date) and Kumudini Wickremasinghe J (2020 to date), remain on the bench.
The overarching research question this thesis addresses is how the presence of the women judges contributed to the jurisprudence of the Court and whether they made a difference by engaging in feminist judging which promotes the feminist goals of equality and justice for women. This study is one of a very small number of studies of women judges in Sri Lanka and is the first to provide an in-depth empirical analysis of all the women judges of the Supreme Court. Similar studies in other jurisdictions have drawn a range of conclusions on whether the presence of women judges has changed the form, content, and outcome of judicial reasoning. This thesis will add to this existing and growing body of knowledge by revealing how some of the women judges of the Supreme Court have displayed strong and distinct jurisprudential leadership and engaged in feminist judging.
This thesis adopts a mixed methodology to analyse the judgments of the women judges. It uses a longitudinal quantitative analysis and qualitative content analysis, to interrogate the judgments and elicit answers about the nature of judging in which the women judges engaged. It approaches this task from a feminist perspective, drawing on feminist studies on gender and judging primarily from leading feminist scholars Rosemary Hunter and Erika Rackley, to formulate the framework for this analysis.
This thesis reveals that the women judges made a significant contribution to the Court and that three of them, namely Chief Justice Shirani Bandaranayake, and Justices Eva Wanasundera and Shiranee Tilakawardane, displayed considerable jurisprudential leadership. These women judges joined the Court from different legal backgrounds — academia, the state bar, and the judiciary— and brought diverse experience and expertise to the Court. This thesis claims that this diversity enriched the law and added feminist perspectives to it. This is evident in their judgment writing. This thesis also provides evidence that the judges’ values, beliefs, and experiences are reflected in their judgments, and that some of these, stem from the Asian/Sri Lankan background of the judges. This leads to the conclusion that the interpretation of the elements of ‘feminist judging’ — that is the eight components identified by Hunter as evidence that a judgment harmonised with feminist values — must be tailored to the social and cultural context of the country that is being studied. This thesis argues that an appreciation of this perspective is essential to understand how feminist values, especially the ethic of care, which posits that women speak in a moral voice which is relational and caring, are at work in the judgments written by the Sri Lankan women judges. The thesis concludes that the women judges made a difference to the Court and that each of the three judges who were jurisprudential leaders on the Court brought something unique to it. This thesis also illustrates that a judge’s attitude towards feminism may not always be a good indicator of whether they engage in feminist judging. For example, although Wanasundera J was reluctant to be identified as a feminist judge due to the social perception that feminism is something negative, her judgments strongly reflected a commitment to feminist values. This thesis also argues that the proportion of cases with potential for feminist judging was one of the factors which determined how often a judge engaged in feminist judging and the paucity of these cases placed limitations on Tilakawardane J, who is a judge with known feminist tendencies.