The Separation of Powers and Independence of Judiciary: Checks and balances in Constitution

PROFESSOR G.L. Peiris (Prof. GLP) in a speech delivered on 12 December 2025 at the International Research Conference at the Faculty of Law, University of Colombo published in the Daily FT of 15 December 2025 under the caption “Presidential authority in times of emergency A contemporary appraisal” has critiqued the majority judgment of the Supreme Court of Sri Lanka in Ambika Sathkunanathan V. A.G. on the declaration of emergency by Ranil Wickremasinghe as Acting President on 17 July 2022 in response to the “Aragalaya”.

- By Nigel Hatch

The majority held that Wickremasinghe had violated the Fundamental Rights of the people by a Declaration of a state of emergency. The author was to attend this event but was unable to do so due to a professional commitment out of Colombo.

After citing authority from several foreign jurisdictions in support of his view of judicial deference to the Executive on matters relating to a state of emergency, he advances as one of the grounds as to why the majority were wrong in the Sri Lankan context is that the predisposition to judicial deference is reinforced by a firmly entrenched constitutional norm - “a foundational principle of our public law is the vesting of judicial power not in the courts but in parliament, which exercises judicial power through the instrument of the courts. This is made explicit by Article 4(c) of the constitution which provides “the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its members, wherein the judicial power of the People may be exercised directly by Parliament according to law”.

Prof GLP opines that the majority judgment constitutes “judicial overreach which has many undesirable consequences” including “traducing constitutional traditions; subverting the specific model of separation of powers reflected in our Constitution.”

Prof. GLP, is in effect advancing the view that the Sri Lankan Courts in the present constitutional framework of the 2nd Republican Constitution 1978 are subservient to the Executive or Parliament.