Reframing Feminist Imperatives in Adjudication through a Reading of Sri Lankan Jurisprudence

Abstract

What does the study of the exercise of judicial discretion by judges reveal about advancing gender through adjudication? In this chapter, I claim that, in jurisdictions of the global south, this question cannot be limited to a study of judges or of the exercise of discretion. The focus must extend beyond the study of individual judges and/or their judgements to a study of the system of adjudication, that is to say, the laws, legal institutions and the legal and political culture within which they operate. I study nine different emblematic cases involving gender justice that came before Sri Lankan courts in making my claim. Some of these cases were adjudicated upon by women judges while some were not. I read the selected jurisprudence from this lens to explain advances and retreats from gender justice in adjudication. I argue that unlike in the global north, posing the woman question of judges, in the global south, lead to misleading answers regarding women’s inclusion and representation in adjudication. It draws attention away from structural problems that have plagued legal institutions and away from problematic values of the legal as well as political culture. I argue that in as much as asking the woman question of the judiciary, it is also necessary to ask it of the system of adjudication. My analysis suggests that any link between women judges and gender justice is tenuous. It suggests quite clearly that the ways in which the system of adjudication operates, that is the legal institutions, the law and the legal and political culture within which disputes are resolved, better explains the dynamics of gender justice in adjudication.