The Implementation of Constitutional Ouster Clauses in Sri Lanka: A Sisyphean Task?

Abstract

Abstract –The phrase ‘A Sisyphean task’ originates in Greek mythology, where Sisyphus, king of Ephyra, was condemned to an eternity of repeatedly rolling a large boulder up a hill, only to have it roll back down each time he reaches the top. This paper examines whether the implementation of ouster clauses has proven to be equally futile. Ouster Clauses (also known as privative, preclusive or exclusionary clauses) are legislative provisions which seek to exclude from the ambit of judicial review, certain acts or decisions of a statutory body. Does the legislature repeatedly introduce such clauses, only to have the judiciary disregard them? The author views ouster clauses as pivots in the legal machinery, maintaining the delicate balance between the three organs of government. Therefore, it is critical to identify the role of the judiciary in maintaining that balance. The objective of this study is to identify a common thread in Sri Lankan judicial approach with regard to the specific category of Constitutional ouster clauses. It is a discursive essay on how the courts have tackled the four main ouster clauses contained in the second Republican Constitution, focusing primarily on Article 61A, which is a comparatively recent addition; introduced by the 17th amendment and modified by the 19th. This shall be compared vis-à-vis the functionally similar Article 55(5) which existed prior to the 17th Amendment, in order to highlight any changes in judicial approach and the reasons underpinning such changes. Through a qualitative analysis of Constitutional provisions and relevant judicial decisions, this paper addresses the key problem of whether the Sri Lankan courts have conformed to a general set of principles in interpreting Constitutional ouster clauses, or has implementation been solely dependent on how far an individual judge is willing to go, disregarding the literal meaning, in the name of ‘judicial activism’?