Dinesha Samararatne | University of Colombo, Sri Lanka (original) (raw)

Books by Dinesha Samararatne

Routledge, 2021

Drawing on rich empirical work emerging from core conflict regions within the island nation of Sr... more Drawing on rich empirical work emerging from core conflict regions within the island nation of Sri Lanka, this book illustrates the critical role that women with disabilities play in post-armed conflict rebuilding and development.

This pathbreaking book shows the critical role that women with disabilities play in post-armed conflict rebuilding and development. Through offering a rare yet important insight into the processes of gendered-disability advocacy activation within the post-conflict environment, it provides a unique counter narrative to the powerful images, symbols and discourses that too frequently perpetuate disabled women’s so-called need for paternalistic forms of care. Rather than being the mere recipients of aid and help, the narratives of women with disabilities reveal the generative praxis of social solidarity and cohesion, progressed via their nascent collective practices of gendered-disability advocacy.

It will be of interest to academics and students working in the fields of disability studies, gender studies, post-conflict studies, peace studies and social work.

The book evaluates the development of the 'public trust doctrine' by the Sri Lankan Supreme Court... more The book evaluates the development of the 'public trust doctrine' by the Sri Lankan Supreme Court over the last two decades. Starting with an assessment of the origins of the 'public trust doctrine' from in Roman law and its use in other jurisdictions such as the United States, it is argued that the version of the 'public trust doctrine' applied in Sri Lanka is different to that applied in the United States, South Africa or India.

Papers by Dinesha Samararatne

University of Colombo Review

Indian law review, May 4, 2023

Hart Publishing eBooks, 2023

Routledge eBooks, Jul 9, 2024

Verfassung in Recht und Übersee, 2021

In many countries beyond the traditional comparative constitutional law canon, the advocates of c... more In many countries beyond the traditional comparative constitutional law canon, the advocates of constitutionalism are increasingly appealing to a supra-national constitutional discourse frequently grounded in best practices for constitutionalism. This trend has helped to foster a nationalistic backlash which arguesin which constitutional advocates argue that constitutions should not reflect international constitutional norms but instead must reflect historically-grounded tradition or identity. How should advocates of constitutionalism understand and respond to this backlash? We argue that linking a critical interpretation of national history and the text of the national constitution to constitutionalism can help to counter this nationalist backlash, particularly in constitutional adjudication. Looking at Russia and Sri Lanka, we illustrate how this process of “redeeming the national” can provide new arguments for those interested in advancing the project of constitutionalism. We arg...

The Australian Journal of Anthropology, 2017

Social Science Research Network, 2022

Cambridge University Press eBooks, Oct 7, 2021

Asian Journal of Comparative Law, Dec 1, 2021

The undisputed success of Sri Lanka's first Election Commission (2015–2020) was the condu... more The undisputed success of Sri Lanka's first Election Commission (2015–2020) was the conduct of free and fair elections, that is to say, electoral management. I argue in this article that, by design and in practice, it was unable to or failed to advance electoral integrity that is urgently required for the health of Sri Lanka's constitutional democracy. At critical points when electoral integrity and constitutional democracy were threatened, it was the Court, the traditional institutional check on the Executive and the Legislature, that prevented its further erosion. The Commission, therefore, was an institutional innovation that addressed symptoms of Sri Lanka's ailing constitutional democracy but not its root causes. The Commission has been a necessary but insufficient fix for the electoral pathologies of Sri Lanka's constitutional democracy. Its ‘guarantor’ function, as I illustrate in this article, is narrowly conceived, perceived and lived out.

The Round Table: The Commonwealth Journal of International Affairs, Nov 2, 2019

Verfassung und Recht in Übersee, 2021

Social Science Research Network, 2019

Hart Publishing eBooks, 2023

Asian journal of law and society, Nov 12, 2021

What types of institutional dynamics and conditions allow constitutional resilience in the face o... more What types of institutional dynamics and conditions allow constitutional resilience in the face of attempts at undermining gains in a constitutional democracy? Using Sri Lanka as a case-study, I claim that the legal complex acting in synergy with independent public institutions (the Speaker of the Parliament) and civil society can produce constitutional resilience. Synergy between the legal complex and these institutions can transform constitutional vulnerability into constitutional resilience. I argue therefore that the legal complex theory must be extended to consider the ways in which it can work in synergy with other public institutions in being resilient against attempts at rolling back gains for constitutional democracy. I argue further that synergy between the legal complex and formal and informal institutions over the short term can only result in “simple” constitutional resilience. The development of “reflexive” constitutional resilience requires long-term synergy between the legal complex and other public institutions.

Social Science Research Network, 2020

Even though the practice of public participation gives rise to questions about impact, design and... more Even though the practice of public participation gives rise to questions about impact, design and risk, public participation remains an essential ingredient in contemporary constitution-making processes, in some form. In states emerging from conflict, constitution-making and some kind of public participation in that exercise is often understood to be central to strengthening constitutional governance. In this paper, I am concerned with the implications of these assumptions in states that can be categorised, broadly, as post-war. That is to say, countries in which armed conflict has ceased, but have not yet reached a political solution. In looking at the experiences of some of these jurisdictions, I ask the following questions. How should the emerging norm of public participation in constitution-making be understood and applied? What approaches are most useful in dealing with the dimensions of public-participation in constitution-making? I focus specifically on Nepal, Myanmar and Sri Lanka in exploring this question. Theorising from the Global South, I argue that the dilemmas that arise in public participation throw into sharp relief its several dimensions. These dimensions are 1) conflict resolution and state formation, 2) democratisation, 3) transparency and accountability, 4) the transnational dynamic, 5) constitutional literacy and 6) constraints of resources and time. I claim that understanding public participation as comprising of these dimensions clarifies its nature and scope. This view allows a more honest but also modest approach. In other words it allows for public participation in constitution-making to be taken more seriously.

Journal of Law and Society, Nov 1, 2020

Routledge, 2021

It will be of interest to academics and students working in the fields of disability studies, gender studies, post-conflict studies, peace studies and social work.

University of Colombo Review

Indian law review, May 4, 2023

Hart Publishing eBooks, 2023

Routledge eBooks, Jul 9, 2024

Verfassung in Recht und Übersee, 2021

The Australian Journal of Anthropology, 2017

Social Science Research Network, 2022

Cambridge University Press eBooks, Oct 7, 2021

Asian Journal of Comparative Law, Dec 1, 2021

The Round Table: The Commonwealth Journal of International Affairs, Nov 2, 2019

Verfassung und Recht in Übersee, 2021

Social Science Research Network, 2019

Hart Publishing eBooks, 2023

Asian journal of law and society, Nov 12, 2021

Social Science Research Network, 2020

Journal of Law and Society, Nov 1, 2020

Routledge eBooks, Feb 2, 2023

Sri Lankan Public Law as Political Jurisprudence through the Prism of ‘Sovereignty of the People’... more Sri Lankan Public Law as Political Jurisprudence through the Prism of ‘Sovereignty of the People’

Dinesha Samararatne

This paper seeks to examine the much discussed but hardly theorized, constitutionally recognized concept of the ‘sovereignty of the People’ in Sri Lanka. The objective of such an examination is to contribute to the normative understanding of the place of public law in a post-war future of the country. ‘Sovereignty of the People’ since 1971 has epitomized a shift in the normative thrust of Sri Lankan public law. The concept has been used to indicate the transfer of legitimacy from ‘the colonial’ to ‘the People.’ However history suggests that while ‘official’ legitimacy in terms of the ballot was derived from the people, ‘power’ resided either in political parties and/or significant leaders of those parties. Public law in that sense has not been a site for effective democratization, equalization, accountability or for the wide spread recognition of rights.

It also seems that in contrast to the organic evolution of the ‘public sphere’ and the evolution of the notion of a ‘state’ elsewhere in the world, the Sri Lankan experience in both those aspects were by and large colonial impositions which were subsequently taken advantage of by political parties that were voted into power.

Parallel to that development judicial interpretation of the ‘sovereignty of the People’ remains bare at its best under both Republican Constitutions. Legislative and Executive interpretations as evidenced in parliament debates and legislative policy is confusing and in many cases amounts to a usurpation and abuse of public power.

In contemporary society, many of the post-war questions of rights, governance, representation and sharing of resources have arising in the context of the failure of Sri Lankan law(s). Public law in particular in Sri Lankan is no longer perceived as a source of authority and much has been said about the break-down of the rule of law and the crippling of public institutions. One response to this failure of the law would be to re-imagine public law and to re-visit its foundations. Through such reflection an attempt could be made to re-cast the law as relevant and useful. It could also provide an impetus to move beyond the current construction and criticisms of public law which are primarily located within a positivist, conventional and relatively isolated framework of thought.

The multi-layered concept of sovereignty has implications at both the domestic and international levels within international law and domestic law respectively. At the domestic level it has been argued that ‘sovereignty’ can be understood as including both ‘the political’ and ‘the legal.’ Positivists notions of sovereignty as being vested with one institution of the state has been rejected in favour of an understanding that views it as a relational notion and as a framework for relationships within state institutions and between the state and the citizen.

Within this context, this paper seeks to develop a normative account of the constitutionally recognized concept of ‘the sovereignty of the People.’ The recent work by Martin Loughlin, Martha Nussbaum and Evan Fox-Descent will be relied on in this exercise. Foucault’s arguments on governmentality and political rationality will also be relied on in pushing beyond the traditional and/or positivist discourse of public law that dominates the Sri Lankan legal landscape. Relying on Loughlin’s concept of public law as political jurisprudence, it will be argued that through a dynamic understanding of the ‘sovereignty of the People’ Sri Lankan public law ought to be constructed relationally, as a normative framework for the ‘political right’ and as a point of reference for a post-war ethical future.

The research entailed a four-stage process that significantly focused on building the ... more The research entailed a four-stage process that significantly focused on building the research capacity of women with disabilities and their advocates, enabling their participation in the project as expert knowers of the interstice of gender and disability under transitional arrangements. Spanning a period of more than 12 months of fieldwork, the outcome of the research is a clear set of recommendations to advance the rights of women with disabilities in law, policy and institutional practice

Harvard Human Rights Online Symposium on Transitional Justice (2017)

Journal of Asian Studies, 2019

Sri Lanka: State of Human Rights , 2020

Hong Kong Law Journal, 2023

In jurisdictions like Sri Lanka, where judicial review is explicitly prohibited, what is the rele... more In jurisdictions like Sri Lanka, where judicial review is explicitly prohibited, what is the relevance, if any, of the arguments about representation reinforcement through responsive judicial review? What does the Sri Lankan case study reveal about the limits to responsive judicial review in addressing democratic dysfunction? The executive presidency and its aggrandisement in practice and the failure to guarantee equality and the internal right of self-determination are some of Sri Lanka’s most challenging constitutional problems. Dinesha Samararatne argues in this article that developments in Sri Lanka offer insights to a different form of judicial engagement, a form which builds on a fundamental value of constitutionalism, that public power must be exercised in trust for the
People.

Asian Journal of Comparative Law, 2020

What lessons can we learn from the way in which the South African experience of transformative co... more What lessons can we learn from the way in which the South African experience of transformative constitutionalism was invoked in Sri Lanka's recent constitutional reform experience? What conditions allow experiences of transformative constitutionalism to travel? In this article, I respond to these two questions, using Frankenberg's idea of a ‘layered approach’ in comparative constitutional law. My analysis affirms that in the comparative enterprise, a thick explanation that allows each experience to ‘speak for itself’ heightens the value of a comparative example. In the case of South Africa, I demonstrate that transformative constitutionalism is in fact a specific genre of constitutionalism. It demands attention not only to substantive constitutional guarantees and institutional design, but also to the process of constitutional reform. Moreover, effective measures for transitional justice are an essential component of transformative constitutionalism. A closer reading of the South African experience that paid attention to these factors would have led to better use of this experience in Sri Lanka's post-war constitutional governance.

Broad and inter-disciplinary inquiry into disability is at a nascent stage in Sri Lanka. This pap... more Broad and inter-disciplinary inquiry into disability is at a nascent stage in Sri Lanka. This paper looks at the intersectionality of disability and gender in the specific contexts of ‘the rural’ and the armed conflict-affected areas of the country, particularly the interaction with the law. In-depth interviews and focus group discussions were conducted among rural women with disabilities in the North Central and Eastern provinces, including women who acquired disabilities resulting from the internal conflict. Legal literacy, administrative discretion in disability-related welfare programmes, and transitional justice and reconciliation emerged as the most prominent themes in the interviews. We analyse these issues using a rights framework in an attempt to highlight some of the vulnerabilities of women with disability in the rural and war-affected contexts. The paper also reflects on a few instances where those vulnerabilities have been overcome through collective action.

Colombo Law Journal , 2016

Bar Association Law Journal of Sri Lanka, 2016

This article draws on grounded qualitative research with rural Tamil women who acquired a disabil... more This article draws on grounded qualitative research with rural Tamil women who acquired a disability during the civil war in Sri Lanka and conceptualizes an intersectionality-peace framework. Three main themes were developed from the interviews: narratives of conflict, survival outcomes of social assistance and mobilization of cross-ethnic relationships. With the support of a local women’s disability advocacy organization, Tamil women with disabilities were enabled to overcome social stigma and claim a positive identity as women with disabilities. The organization’s focus on realizing disability rights created new opportunities for these highly marginalized rural women. The women were also supported to form cross-ethnic relationships with women who similarly faced multiple oppressions. These relationships transformed the women into ‘agents of peace’, using their newfound disability identity to foster cross-ethnic dialogue and create safe spaces in the post-conflict context.

Our essay examines the recursions, rationalities, limits, and promise of the law drawing on three... more Our essay examines the recursions, rationalities, limits, and promise of the law drawing on three recent cases of women who encountered law enforcement authorities and the courts in Sri Lanka. It provides a strong account of how dominant gender norms are mobilized to determine who is afforded the sanctuary of the law and who is not. By foregrounding the troubled encounters of the women with the law the essay also demonstrates the ways in which the law, culture, and the state combine, pull apart, and recombine in a manner that draws attention to their own internal relations; and how procedures established to ensure legal objectivity and judicial impartiality often fold back on themselves, reflecting the pliancy of the law. The essay also foregrounds the conditions of possibility, including feminist legal methodologies, that enable women to (re)turn to the law despite its transgressions. In doing so it argues for seeing the law as multilayered and recursive, reflecting the thick and uneven conditions under which women access justice in Sri Lanka. In highlighting how these women challenge and bargain with the law, the essay also acknowledges their tenacity and endurance in what, ultimately, is an effort at demanding an improved and substantive justice.

Indian Law Review

The significant developments in Sri Lankan public law in the last three decades have been due to ... more The significant developments in Sri Lankan public law in the last three decades have been due to the explicit or implicit influence of Indian jurisprudence. This influence can be seen in Sri Lanka’s jurisprudence on the right to equality, the habeas corpus writ, the “basic structure” doctrine, the interpretation of the rules of standing, and in the fundamental rights jurisprudence. Since the establishment of British colonial rule, English common law has been the foundation and source for the development of Sri Lanka’s public law. Three methods characterize a recent turn to Indian jurisprudence in the development of public law. One method is of direct judicial borrowing. The second method is reinforcement of judicial reasoning by reliance on Indian jurisprudence. The third is the creeping influence of Indian jurisprudence. I argue that these developments unsettle, if not replace, the historical reliance on English law. These developments are arguably an indication of a nascent Sri Lankan common law that draws its inspiration, at least in part, from a jurisprudence that bears constitutional proximity to India. Consequently, the place of English common law as the “main source of law” in Sri Lankan public law has now been weakened.

Disability & Society, 2015