A Court out of line and out of step

In a recent ruling, the Supreme Court of Sri Lanka declared that gender equality should not be legally mandated, citing cultural, religious and societal norms as a basis for their decision. This judgement needs to spark a debate on the role of the judiciary in a rapidly evolving world and its responsibilities—or lack thereof—towards fostering progressive change in society.

The primary role of any judiciary is to interpret and uphold the law, in the case of the SC the Constitution, ensuring that justice is administered fairly and without bias. However, Sri Lanka’s Supreme Court decision appears to have ventured beyond this mandate, positioning itself as a guardian of traditional values, religion and cultural norms rather than as a neutral arbiter of justice.

Morality is inherently subjective and culturally contingent. It evolves over time and varies significantly across different societies. When courts take it upon themselves to uphold specific moral or cultural standards, they risk imposing a static interpretation of what is acceptable in a society that is dynamic and constantly changing. The judiciary’s role should not be to preserve cultural status quo but to ensure that laws are applied justly, safeguarding the rights of all individuals. In this case, the provisions for equality enshrined in the Sri Lankan Constitution should have been the fundamental driving factor of the Court rather than assumed mandate of ‘protector of religion and culture.’

Contrastingly, courts in other parts of the world have embraced their role in advocating for equality and protecting individual rights, often leading the way in societal progress. In India, for instance, the Supreme Court has been instrumental in advancing gender and sexual equality. Landmark rulings such as the decriminalisation of homosexuality in 2018 and the recognition of transgender rights have positioned the judiciary as a champion of marginalised communities. The Indian judiciary has demonstrated that the law can be a powerful tool in challenging entrenched societal norms and promoting inclusivity.

Similarly, Thailand, a predominantly Buddhist nation like Sri Lanka, has recently made significant strides towards gender equality by legalising same-sex marriage. This bold step illustrates that cultural and religious traditions need not be barriers to progressive legal reform. 

Culture is not a monolith. It is a fluid, ever-changing tapestry woven from the diverse experiences and values of its people. When courts attempt to cement cultural norms into legal frameworks, they risk stifling this natural evolution. As societies progress, their cultural and moral landscapes shift, necessitating laws that adapt to these changes. It has long passed the time since Sri Lanka should have amended colonial era laws that governed sexual orientation and preference based on Canon law. 

Sri Lanka’s Supreme Court decision, by refusing to legally endorse gender equality, appears disconnected from the global movement towards inclusivity and equal rights. This ruling not only sidelines the country’s marginalised communities but also positions the judiciary as an impediment to social progress.

In a modern democracy, the judiciary should be a bulwark against discrimination and a promoter of equal rights, not an enforcer of dated cultural norms. Courts should protect the principles of justice and equality enshrined in the Constitution, ensuring that all citizens, regardless of gender or other characteristics, are afforded the same rights and protections.

The recent ruling by Sri Lanka’s Supreme Court underscores the need for the judiciary to remain focused on upholding the principles of justice and equality rather than serving as a custodian of static cultural norms and non-existent standards of religious morality. As societies evolve, so too must their legal systems. The future demands a judiciary that is in step with the aspirations of its people, championing equality and justice for all.